B 372639
University of
Michigan
Libraries
1817
ARTES SCIENTIA VERITAS
J
4
:
A SYSTEM
OF
PENAL
FOR
LAW,
4 732
THE STATE OF LOUISIANA:
CONSISTING OF
A CODE OF CRIMES AND PUNISHMENTS,
A CODE OF PROCEDURE,
A CODE OF EVIDENCE,
A CODE OF REFORM AND PRISON DISCIPLINE,
A BOOK OF DEFINITIONS.
PREPARED UNDER THE AUTHORITY OF A LAW OF THE SAID STATE.
BY EDWARD LIVINGSTON.
TO WHICH ARE PREFIXED
A PRELIMINARY REPORT ON THE PLAN OF A PENAL CODE, AND INTRODUCTORY
REPORTS TO THE SEVERAL CODES EMBRACED IN THE
SYSTEM OF PENAL LAW.
PUBLISHED BY
JAMES KAY, JUN. & BROTHER, 267 MARKET STREET, PHILADELPHIA:
JOHN I. KAY & CO., PITTSBURGH.
HV
6787
Entered according to the act of congress, in the year 1833, by James and
John I. Kay, in the clerk's office of the district court of the eastern district
of Pennsylvania.
Printed by
JAMES KAY, JUN. AND CO.
Printers to the American Philosophical Society,
Race above Fourth Street,
Philadelphia.
ANALYTICAL TABLE.
ACT OF ASSEMBLY OF LOUISIANA, 10 FEBRUARY 1820
APPOINTMENT OF Edward LIVINGSTON
RESOLUTION OF THE ASSEMBLY OF LOUISIANA, 21 MARCH 1822
PRELIMINARY REPORT ON THE PLAN OF A PENAL CODE
INTRODUCTORY REPORT TO THE SYSTEM OF PENAL LAW
1
1
1
1
3
4 5
49
INTRODUCTORY REPORT TO THE CODE OF CRIMES AND PUNISHMENTS
INTRODUCTORY REPORT TO THE CODE OF PROCEDURE
-
113
- 199
INTRODUCTORY REPORT TO THE CODE OF EVIDENCE
INTRODUCTORY REPORT TO THE CODE OF REFORM AND PRISON DISCI-
- 247
PLINE
- 305
A SYSTEM OF PENAL LAW.
INTRODUCTORY TITLE
- 357
A CODE OF CRIMES AND PUNISHMENTS.
BOOK I.
General Provisions
Book II. Of Offences and Punishments
-
- 366
375
TITLE 1. General divisions and descriptions of offences and
punishments. -
TITLE 2. Of offences against the sovereign power of the
. 375
state
- 380
TITLE 3.
Of offences against the legislative power
- 381
TITLE 4.
TITLE 5.
TITLE 6.
Of offences against the executive power
Of offences against the judiciary power
Of offences against public tranquillity
- 382
- 385
- 395
-TITLE 7.
TITLE 8.
TITLE 9.
Of offences against the right of suffrage
Of offences against the liberty of the press
Of offences against public records
- 398
- 400
-
402
TITLE 10.
tures
Of offences against the current coin and public
securities
TITLE 11. Of offences against the public revenue
TITLE 12.
Of offences which affect commerce and manufac-
TITLE 13. Of offences affecting public property
· 403
404
· 406
- 414
iv
ANALYTICAL TABLE.
Book II.
TITLE 14.
TITLE 15.
Of offences affecting the public roads, &c.
Of offences injurious to public health
. 414
. 416
TITLE 16.
Of offences against morals
-
417
TITLE 17.
Of offences which affect persons in the exercise of
their religion
- 420
TITLE 18.
Of offences affecting reputation
421
TITLE 19.
TITLE 20.
Of offences affecting the persons of individuals
Of offences affecting individuals in their profession
-
427
453
- 454
·
456
or trade
TITLE 21. Of offences against civil and political rights and
conditions
TITLE 22. Of offences affecting persons in their profession or
trade
TITLE 23. Of offences against private property
A CODE OF PROCEDURE.
INTRODUCTORY TITLE
-
. 456
Book I. Of the means of preventing offences; of suppressing those
which are continuous; and of employing the military in
aid of the civil power
TITLE 1. Of preventing offences
TITLE 2. Of suppressing permanent offences
TITLE 3. Of the manner of calling for and employing the
military force of the state in aid of the civil
power
Book II. Of the mode of prosecuting offences
TITLE 1. Of arrest and bail
or bail
TITLE 2. Of the proceedings subsequent to the commitment
- 743
-
476
- 476
484
-
. 498
- 501
- 501
-
512
TITLE 3. Of the mode of procedure in certain cases not im-
mediately connected with prosecutions
Book III. Containing the forms to be used in all the judicial proceed-
ings prescribed or authorized by this code
TITLE 1. Of the form to be used in the proceedings authorized
for the prevention of offences
556
J
567
563
-
TITLE 2. Of the form to be used in the proceedings authorized
for suppressing permanent offences
-
-
567
TITLE 3. Of the form to be used in the proceedings authorized
for calling for and employing military force. 576
TITLE 4. Of the form to be used in the proceedings authorized
for prosecuting offences
-
577
A CODE OF EVIDENCE.
INTRODUCTORY TITLE
- 644
Book I. Of the nature of evidence and of its several kinds
645
TITLE 1.
TITLE 2. Distribution of the subject
Book II. Of the rules applicable to the several kinds of evidence
TITLE 1. Of the evidence offered to a judge from his own
knowledge
General principles and definitions
- 645
. 645
647
-
647
ANALYTICAL TABLE.
V
BOOK II.
TITLE 2. Of testimonial evidence
TITLE 3. Of scriptory evidence
TITLE 4. Of substantive evidence
TITLE 5. Of presumptive evidence
TITLE 6. Of direct evidence
TITLE 7. Of conclusive evidence
1
1
I
1
1
- 648
- 656
- 676
- 676
- 677
- 678
A CODE OF REFORM AND PRISON DISCIPLINE.
INTRODUCTORY TITLE
- 691
- 693
693
Book I. Places of confinement; of their construction and officers
TITLE 1. Of places of confinement
TITLE 2. Of the officers and attendants of the several places
of confinement, and their several duties
Book II. Of the treatment of the prisoners in the several places of
confinement
. 706
-
-
-
695
TITLE 1. Of the prisoners confined in the house of detention 706
TITLE 2. Of the treatment of the prisoners in the penitentiary 707
TITLE 3. Of the school of reform
714
TITLE 4.
Of the pecuniary concerns of the several places of
confinement
- 722
TITLE 5.
Of the discharge of the convicts
- 724
TITLE 6.
How the property of persons condemned for crime
shall be disposed of
-
TITLE 1.
TITLE 2.
Book III. Of the house of refuge and industry
Of the design of this establishment
Of the different departments of the house of refuge
and industry, and of the description of persons
admitted to, and confined in each
TITLE 3. Of the officers of the house of refuge and industry,
and of their duties
TITLE 4. Of the admission into the house of refuge, and of the
725
- 727
727
727
- 728
employment of the persons admitted
- 729
TITLE 5.
Of the police of the house of refuge
. 730
TITLE 6.
Of the house of industry, its police, and the employ-
ment of the persons confined therein
- 730
TITLE 7. Of the pecuniary concerns of the house of refuge
and industry
- 731
A BOOK OF DEFINITIONS.
TITLE 1. General provisions
TITLE 2. Definitions -
- 735
- 735
AN ACT
OF
THE GENERAL ASSEMBLY OF LOUISIANA,
RELATIVE TO
THE CRIMINAL LAWS OF THAT STATE.
APPROVED 10 FEBRUARY 1820.
WHEREAS it is of primary importance, in every well regulated state,
that the code of criminal law should be founded on one principle, viz.
the prevention of crime; that all offences should be clearly and explicitly
defined, in language generally understood; that punishments should be
proportioned to offences; that the rules of evidence should be ascer-
tained as applicable to each offence; that the mode of procedure should
be simple, and the duty of magistrates, executive officers and individuals
assisting them, should be pointed out by law : and whereas the system
of criminal law, by which this state is now governed, is defective in
many, or all of the points above enumerated, therefore:
Section 1. Be it enacted by the senate and house of representatives.
of the state of Louisiana in general assembly convened, that a person.
learned in the law shall be appointed by the senate and house of repre-
sentatives at this session, whose duty it shall be to prepare and present
to the next general assembly, for its consideration, a code of criminal
law in both the French and English languages, designating all criminal
offences punishable by law; defining the same in clear and explicit.
terms; designating the punishment to be inflicted on each; laying down
the rules of evidence on trials; directing the whole mode of procedure,
and pointing out the duties of the judicial and executive officers in the
performance of their functions under it.
Section 2. And be it further enacted, that the person so to be
chosen, shall receive for his services such compensation as shall be
determined by the general assembly, at their next session, and that a
sum of five hundred dollars shall be paid to him, on a warrant of the
governor upon the state treasury, to enable him to procure such in-
A
2
•
formation and documents relative to the operation of the improvements
in criminal jurisprudence, particularly of the penitentiary system in the
different states, as he may deem useful to report to the general assembly
in considering the project of a code: he shall account to the general
assembly, in what manner the said five hundred dollars has been dis-
posed of.
J
IN
THE GENERAL ASSEMBLY OF LOUISIANA.
13 FEBRUARY 1821.
WE, the undersigned, secretary of the senate and clerk of the house
of representatives of the state of Louisiana, do hereby certify, that on
the thirteenth of February in the year of our lord one thousand eight
hundred and twenty-one, EDWARD LIVINGSTON, Esq. was elected and
appointed by the joint ballot of the general assembly of said state, to
draw and prepare a criminal code. In testimony whereof, we have
hereunto set our hands.
J. CHABAUD,
Secretary of the Senate.
CANONGE,
Clerk of the House of Representatives.
New-Orleans, March 28, 1822.
RESOLUTIONS
OF
THE GENERAL ASSEMBLY OF LOUISIANA.
21 MARCH 1832.
RESOLVED by the senate and house of representatives in general
assembly convened, that the general assembly do approve of the plan
proposed by Edward Livingston, Esq., in his report, made in pursu-
ance of the act entitled "an act relative to the criminal laws of this
state," and earnestly solicit Mr Livingston to prosecute this work,
according to said report; that two thousand copies of the same, together
with the part of the projected code thereto annexed, be printed in
pamphlet form; one thousand of which shall be printed in French and
one thousand in English, under the direction of the said Edward
Livingston, Esq., of which five copies be delivered to each member of
the present general assembly, fifty copies to the governor, one copy to
each of the judges of the supreme court, the district judges, the judge
of the criminal court, the attorney-general and district attorneys, the
parish judges, two hundred copies to the said Edward Livingston, Esq.;
and that the balance shall be for the use of the state, of which one half
shall be deposited in the hands of the secretary of the senate and
clerk of the house of representatives, and the other half in the office of
the secretary of the state.
And be it further resolved, that the governor be requested, and it is
hereby made his duty to contract for the printing of said work, and to
pay for the same out of the contingent fund.
And be it further resolved, that a sum of one thousand dollars be
paid to Edward Livingston, Esq., on his warrant, out of the treasury
of the state, to be on account of the compensation to him allowed, when
his work shall be completed.
A. BEAUVAIS,
Speaker of the House of Representatives.
J. POYDRAS,
President of the Senate.
Approved, March 21, 1822,
T. B. ROBERTSON,
Governor of the State of Louisiana.
REPORT
MADE BY
EDWARD LIVINGSTON
ΤΟ
THE HONOURABLE THE SENATE AND HOUSE OF REPRESENTATIVES
OF THE STATE OF LOUISIANA IN GENERAL ASSEMBLY CONVENED.
IN PURSUANCE OF THE ACT ENTITLED “AN ACT RELATIVE TO THE CRIMINAL LAWS
OF THAT STATE."
HAVING been honoured by an appointment at the last session, to per-
form the duties required by "an act relative to the criminal laws of
the state," I have thought it necessary to report to the general assembly,
the progress that has been made in the work, and the reasons which
have prevented its completion. In undertaking those duties, I relied
much on the aid which I expected to derive from the other states; for,
although none of them has framed a code on so comprehensive a plan
as that contemplated by our law, yet most of them have established the
penitentiary system, which is intended to form the basis of our legisla-
tion on this subject. Before I could avail myself of the advantage
which those experiments afforded, it was necessary to know, with
precision, their results. This information could only be obtained by
collecting the returns and official reports of the different establishments,
and inducing men of eminence and abilities to communicate their obser-
vations on the subject. Knowing also the advantage to be derived
from a comparison of the opinions of eminent jurists and statesmen on
other leading principles, which must be embodied in the system, I
addressed several copies of the annexed circular letter to the governors
of each state, with the request, that they might be put into the hands
of men, from whom the desired information might be expected: these,
as well as a number of similar applications, I did hope, would have
procured a body of information useful not only to me in framing the
work, but to the legislature in judging of it.
This hope has, however, as yet been but partially realized. I have
· 糟
​REPORT ON
6
}
received returns of the state of the penitentiary only from Massa-
chusets. Governor Wollcott and Judge Swift of Connecticut, Chan-
cellor Kent of New York, Judge Holman of Ohio, Mr Rawle of
Pennsylvania, Mr Bowen of Rhode Island, Mr Brice of Maryland,
and Colonel Johnson of Kentucky, have communicated to me some
useful information; with these exceptions, the gentlemen to whom my
letters were addressed, have been too much occupied in their own
states to attend to the affairs of ours.
Our minister in England has had the goodness to send to me the
reports of the committees of the house of commons, appointed to
inquire into the propriety of a revision of their penal laws; documents
of great utility, to show the operation of the law we have partially
adopted, in that country from which we have borrowed it.
It appears that these reports are not easily procured, and that Mr
Rush was indebted for them to Mr Jeremy Bentham, whose writings
have thrown so much light on the subject of criminal legislation, and
who, in a note addressed to Mr Rush, on our undertaking, has made
a suggestion which he will find has not been disregarded.
I certainly lost some time in waiting for answers to my letters, but
I cannot, in candour, state this, (even with the necessary attention to
my professional business) to have been the only cause why the task I
have undertaken is not yet fully performed.
I never so far overrated my own powers, as to suppose that the
whole plan would be executed in the short interval between the two
sessions, but I did think, that parts of it might be prepared, and
submitted for the sanction of the present legislature, leaving the others.
to be acted upon at a future period. A closer view of the subject,
however, convinced me of my error. In establishing the principles
on which the work was to be framed, and tracing the plan of its differ-
ent divisions, I found that its parts were so closely connected, and
that continued references from the one to the other were so unavoid-
able, as to render it difficult fairly to judge of, or decide on any part
without examining the whole. I therefore determined to report to the
general assembly, the progress I had made, to develope the plan on
which I proposed to execute the work, to give them some of the de-
tached parts as specimens of the execution, and then to take their di-
rection whether it should be completed or not.
The introductory notice herewith submitted, gives the different divi-
sions of the code, into books, chapters and sections; the whole is sub-
divided into articles, numbered progressively through each book, so
that citations may be made by referring to the article and book only.
A continued numeration of the articles, through the whole work, has
been found, in other instances, inconvenient, and carrying the numbers
through each chapter or section only, increases the difficulty of refer-
ence. In the same notice, will be found some general provisions, made
to obviate the necessity of those repetitions, which increased the bar-
barism of our legal language; but the omission of which has sometimes
counteracted the intent of the legislature. The instance of two statutes,
which were made in England, to punish, the one the stealing of horses,
and the other the stealing of a horse, is familiar to lawyers; and indeed
it has been doubted by some, whether a third statute were not neces-
sary, to include the female part of the species.
One other article in this notice points to a method, which will also,
THE PLAN OF A PENAL CODE.
7
it is supposed, tend to render the code both explicit and concise. Tech-
nical terms are never used in the work, where common expressions
could be found to give the same idea. The employment of them, how-
ever, is, in many instances, unavoidable. In all such cases, and when-
ever a word, or a phrase, is either ambiguous, or employed in any
other sense than that which is given to it in common parlance, it be-
comes necessary to explain the precise meaning which is attached to it
in the code. To this end, whenever any such expressions occur in the
course of the work, they are to be printed in a particular character,
which will serve as a notice, that they are defined and explained.
These definitions and explanations form the first book.
This, though necessarily the first in numerical order, it is obvious,
must be the last executed. The words requiring explanation are no-
ted, and the definitions written, as the work progresses; when com-
plete, it will be submitted to men unversed in the language of the law,
and every word not fully understood by them, will be marked for ex-
planation. The foregoing parts of the plan are believed to be new,
and therefore require the stricter attention to the propriety of their en-
actment: they suggested themselves to me, as the means of making the
work, at once concise, and easily comprehended by those who are most
interested in understanding it.
The second book begins with a preamble, which states the reasons
that called for the enactment of a criminal code, and which sanctions,
by a solemn legislative declaration, the principles on which its several
provisions are founded. These principles once studied, and after pro-
per discussion adopted, will serve as a standard to measure the propri-
ety of every other part of the code: with these rules constantly before
us, and duly impressed on our minds, we can proceed with confidence
and comparative ease, to the task of penal legislation; and we may see
at a glance, or determine by a single thought, whether any proposed
provision is consonant to those maxims which we have adopted as the
dictates of truth. The incongruities which have pervaded our sys-
tem will disappear; every new enactment will be impressed with the
character of the original body of laws; and our penal legislation will
no longer be a piece of fretwork exhibiting the passions of its several
authors, their fears, their caprices, or the carelessness and inattention
with which legislators in all ages and in every country have, at times,
endangered the lives, the liberties, and fortunes of the people, by
inconsistent provisions, cruel or disproportioned punishments, and a
legislation, weak and wavering, because guided by no principle, or by
one that was continually changing, and therefore could seldom be
right. This division of the code is deemed to be of the highest im-
portance: all the other parts will derive their character from this; it is
the foundation of the whole work, and, if well laid, the superstructure
raised in conformity to it cannot be essentially faulty. It is the result
of much reflection, guided by an anxiety to discover the truth, and to
express it with precision.
The remainder of the second book is devoted to the establishment
of general dispositions, applicable to the exercise of legislative power
in penal jurisprudence; to prosecutions and trials; to a designation of
the persons who are amenable to the provisions of this code; to a state-
ment of the circumstances under which acts, that would otherwise be
offences, may be justified or excused; to the repetition of offences; to
8
REPORT ON
the situation of different persons participating in the same offence, as
principals, accomplices or accessaries.
The enunciation of these general provisions, it is supposed, will
greatly tend, not only to elucidate, but abridge the work; by throwing
them into 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 mo-
rality, of nature, and of religion. The will of the legislature is estab-
lished as the only rule; and the crude and varying opinions of judges,
as to the extent of this uncertain code of good morals, are 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 de-
scribed 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 con-
demned 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 doc-
trine 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 increased by the legislation of the judges, who declared
acts which were not criminal under the letter of the law, to be punisha-
ble by virtue of its spirit. The statute gave the text, and the tribunals
wrote the commentary in letters of blood; and extended its penalties by
the creation of constructive offences. The vague, and sometimes unin-
telligible language, employed in the penal statutes; and the discordant
opinions of elementary writers, gave a colour of necessity to this assump-
tion 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 construc-
THE PLAN OF A PENAL CODE.
9
{..
tive extension of a penal statute beyond its letter, 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 other's functions, the
exercise of this power would be particularly dangerous; it was there-
fore thought proper to forbid it by an express prohibition. Some ac-
tions, injurious to society, may, by this means, be permitted for a time,
but it was deemed infinitely better to submit to this temporary incon-
venience, than to allow the exercise of a power so much at war with
the principles of our government. It may be 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 legis-
lature, 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 ma-
jority 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. Corrup-
tion 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, now exist. No legislative
act can apply an effectual remedy to these and other constitutional de-
fects; 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 constituents, render any attempt to undermine or destroy them,
more difficult and more odious. Acknowledged truths in politics and
jurisprudence, can never be too often repeated. When the true prin-
ciples 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 arcana of penal
legislation, and to show that the mystery in which it has hitherto been
involved, was not inherent in the subject, but must disappear, when-
ever 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 effec-
tually, it is provided that the judge shall, at the request either of the
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REPORT ON
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 ac-
counts of all trials, remarkable either for the atrocity of the offence, or
the importance of the principles decided in the course of the proceed-
ing. 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 what their servants
are doing, or they will, like other masters, submit to imposition, rather
than take the trouble of inquiring into the state of their affairs. No
nation ever yet found any inconvenience from too close an inspection
into the conduct of its officers; but many have been brought to ruin,
and reduced to slavery, by suffering gradual imposition and abuses,
which were imperceptible, only because the means of publicity had not
been secured. In modern times, the press is so powerful an engine to
effect this, that the nation which neglects to employ it, in promulgating
the operations of every department in government, can neither know
nor deserve the blessings of freedom. The important task of spreading
this kind of information, ought not, therefore, be left to the chance of
private exertion; it must be made a public duty; every one employed
in the administration of justice will then act under the conviction, that
his official conduct and opinions will be discussed before a tribunal in
which he neither presides nor officiates. The effects of such a convic-
tion may be easily imagined, and we may fairly conclude, that in pro-
portion to its strength, will be the fidelity and diligence of those upon
whom it operates.
By our constitution the right of a trial by jury is secured to the ac-
cused, but it is not exclusively established. This, however, may be
done by law, and there are so many strong reasons in its favour, that it
has been thought proper to insert in the code, a precise declaration, that
in all criminal prosecutions, the trial by jury is a privilege which can-
not be renounced. Were it left entirely at the option of the accused,
a desire to propitiate the favour of the judge, ignorance of his true inter-
est, or the confusion incident to his situation, might induce him to waive
the advantage of a trial by his country, and thus, by degrees, accustom
the people to a spectacle they ought never to behold; a single man de-
termining the fact, applying the law, and disposing at his will, of the
life, liberty, and reputation of a citizen.
In proposing this change in our law, I may be permitted to make a
few reflections, to show its importance. The trial by jury formed no
part of the jurisprudence of the different powers which governed Lou-
isiana prior to its last cession. It was first introduced when the pro-
vince became incorporated with the United States, as one of its territo-
ries. By the first act for effecting this union, the trial by jury was es-
tablished in capital cases; and in all others, both civil and criminal,
was left, as in all cases it is now, optional with the parties. In the
second grade of government, it was provided, that the people should
have the benefit of the trial by jury, but it was not declared the only
mode of trial; and our state constitution has adopted it in original cases,
nearly in the same words. This indifference in our constitutional com-
pacts, to an institution of such vital importance, has had the most inju-
rious consequences, which have been increased by subsequent provi-
sions. In civil cases it is already banished from our courts, or used
THE PLAN OF A PENAL CODE.
11
only as an engine of delay, or as an awkward and oppressive vehicle for
transmitting testimony, to be decided only by the supreme court.
This degradation of the functions of jurors, in cases of property, cer-
tainly does not tend to render them respectable in cases affecting life
and liberty. In criminal cases, the attorney-general, I believe, demands
a trial by jury, as he has a right to do, in all serious cases, even where
the accused is willing to waive it. But a prosecutor less friendly to the
institution, and a judge more desirous to increase his powers than the
gentlemen who now fill those stations, could easily find means to make
the jury as useless, as rarely employed, and as insignificant in a crimi-
nal court, as our laws have already made it in civil jurisdiction.
Those who advocate the present disposition of our law, say--admit-
ting the trial by jury to be an advantage, the law does enough when it
gives the accused the option to avail himself of its benefits; he is the
best judge whether it will be useful to him; and it would be unjust to
direct him in so important a choice. This argument is specious, but not
solid. There are reasons, and some have already been stated, to show
that this option, in many cases, cannot be freely exercised. There is,
moreover, another interest, besides that of the culprit, to be considered;
if he be guilty, the state has an interest in his conviction; and whether
guilty or innocent, it has a higher interest, that the fact should be fairly
canvassed before judges inaccessible to influence, and unbiassed by any
false views of official duty. It has an interest in the character of its
administration of justice, and a paramount duty to perform, in render-
ing it free from suspicion. It is not true, therefore, to say, that the
laws do enough, when they give the choice (even supposing it could be
made with deliberation) between a fair and impartial trial, and one that
is liable to the strongest objections. They must do more, they must
restrict that choice, so as not to suffer an ill-advised individual to de-
grade them into instruments of ruin, though it should be voluntarily
inflicted; or of death, though that death should be suicide.
Another advantage of rendering this mode of trial obligatory is, that
it diffuses the most valuable information among every rank of citizens;
it is a school, of which every jury that is impanelled, is a separate class;
where the dictates of the laws, and the consequences of disobedience to
them, are practically taught. The frequent exercise of these important.
functions, moreover, gives a sense of dignity and self-respect, not only
becoming the character of a free citizen, but which adds to his private
happiness. Neither party spirit, nor intrigue, nor power, can deprive
him of this share in the administration of justice, though they can humble
the pride of every other office, and vacate every other place. Every
time he is called to act in this capacity, he must feel that though per-
haps placed in the humblest station, he is yet the guardian of the life,
the liberty, and reputation of his fellow-citizens, against injustice and
oppression; and that, while his plain understanding has been found the
the best refuge for innocence, his incorruptible integrity is pronounced
a sure pledge that guilt will not escape. A state whose most obscure
citizens are thus individually elevated to perform those august func-
tions; who are, alternately, the defenders of the injured, the dread of
the guilty, the vigilant guardians of the constitution; without whose
consent no punishment can be inflicted, no disgrace incurred; who can,
by their voice, arrest the blow of oppression, and direct the hand of jus-
tice where to strike. Such a state can never sink into slavery, or easily
12
REPORT ON
submit to oppression: corrupt rulers may pervert the constitution;
ambitious demagogues may violate its precepts; foreign influence may
control its operations; but while the people enjoy the trial by JURY,
taken by lot from among themselves, they cannot cease to be free.
The information it spreads; the sense of dignity and independence it
inspires; the courage it creates, will always give them an energy of
resistance, that can grapple with encroachment; and a renovating spirit
that will make arbitrary power despair. The enemies of freedom know
this; they know how admirable a vehicle it is to convey the contagion
of those liberal principles, which attack the vitals of their power, and
they guard against its introduction with more care than they would take
to avoid pestilential disease. In countries where it already exists, they
insiduously endeavour to innovate, because they dare not openly destroy;
changes inconsistent with the spirit of the institution are introduced,
under the plausible pretext of improvement: the common class of citi-
zens are too ill-informed to perform the duties of jurors-a selection is
necessary. This choice must be confided to an agent of executive
power, and must be made among the most eminent for education,
wealth and respectability; so that, after several successive operations.
of political chemistry, a shining result may be obtained, freed, indeed,
from all republican dross, but without any of the intrinsic value that is
found in the rugged, but inflexible integrity and incorruptible worth
of the original composition. Men, impanelled by this process, bear
no resemblance but in name to the sturdy, honest, unlettered jurors,
who derive no dignity but from the performance of their duties; and
the momentary exercise of whose functions gives no time for the work
of corruption, or the effect of influence or fear. By innovations such
as these, the institution is so changed, as to leave nothing to attach the
affections, or awaken the interest of the people, and it is neglected as
an useless, or abandoned as a mischievous contrivance.
In England, the panel is made up by an officer of the crown; but
there are many correctives which lessen the effect of this vice. The
return, except in very special cases, is made, not with a view to any
particular cause, but for the trial of all that are at issue; and out of a
large number returned on the panel, the twelve taken for the trial are
designated by lot: in capital cases, also, the extent to which challenges
are allowed, is calculated to defeat any improper practices; and when
we add to this the general veneration for this mode of trial, the force
of public opinion, guided by a spirit which it has created, and diffused,
and perpetuated, we shall see the reason why the trial by jury, though
by no means perfectly organized, is, in that country, justly considered
as the best security for the liberties of the people; and why, though
they behold with a shameful indifference, a domineering aristocracy,
corrupting their legislative, and encroaching on their executive branches
of government, they yet boast, with reason, of the independence of their
judiciary, ennobled as it is with the trial by jury. We have received
this invaluable inheritance from our British ancestors: let us defend,
and improve, and perpetuate it; not only that we may ourselves en-
joy its advantages, but, that if this, with the principle of free repre-
sentation in government, and that admirable contrivance for securing
personal liberty, the writ of habeas corpus, should chance to be cor-
rupted or abolished in the country from whence we derived them, we
may return the obligation we have received, by offering for adoption,
THE PLAN OF A PENAL CODE.
13
to a regenerated state, those great institutions of freedom established by
ancestors common to them and the race of freemen, by whose labours,
experience and valour, they will have been perfected and preserved.
In France, this mode of trial was introduced during the revolution,
but was afterwards found inconvenient to the exercise of the imperial
power. By the code of 1808, it was so modified as to leave scarcely a
resemblance of its origin; it became a select corps of sixty men, chosen
by the prefect, who held his office at the will of the crown.
It was
reduced by successive operations (all by the king's officers) to twenty-
one; out of which the accused had the illusory privilege of excepting to
nine; and the votes of the majority of the remaining twelve, combined,
in no very intelligible manner, with the opinions of the bench, decided
his fate. Yet even under this vicious constitution, juries have some-
times been found to interpose between executive power and its victims;
and the very name (for it is, in fact, very little more) of the trial by
jury, is now, under the monarchy of France, the object of royal jealousy
and fear.
With these examples before us, ought we not, in framing a new code,
to impress on the minds of our constituents a sacred attachment to this
institution? So venerable for its antiquity! So wise in theory! So
efficient in practice! So simple in form! In substance so well-adapted
to its end! The terror of guilt, the best hope of innocence! Venerated
by the friends of freedom, detested and abhorred by its foes!
Can we
too religiously guard this sanctuary into which liberty may retire in
times (God long avert them from our country!) when corruption may
pervert, and faction overturn, every other institution framed for its
protection. Even in such times, the nation need not despair. A re-
generating spirit will never be extinct, while this admirable contrivance
for its preservation exists; fostered in this retreat, it will gradually
gather strength, and in due time will walk abroad in its majesty over
the land, arrest the progress of arbitrary power, strike off the shackles
which it has imposed, and restore the blessings of freedom to a peo-
ple still conscious of their right to enjoy them.
If these reflections should chance to be seen in the other states, they
will be considered as a trite repetition of acknowledged truths: here,
I have some reason to apprehend they will be thought problematical as-
sertions. But whatever may be their effect, I should, with my ideas
of their importance, have been guilty of a dereliction of duty, had I
failed to present them. All, however, I think on the subject, more
than any language at my command can express, is contained in a single
felicitous sentence, written by a man as eminent for learning and ge-
nius, as he is admired for the purity of his principles, and his attach-
ment to the institutions of freedom-speaking of jurors, he calls them-
"Twelve invisible judges, whom the eye of the corruptor cannot
see, and the influence of the powerful cannot reach, for they are no
where to be found, until the moment when the balance of justice being
placed in their hands, they hear, weigh, determine, pronounce, and imme-
diately disappear, and are lost in the crowd of their fellow-citizens."*
The other provisions of this book either require no particular elu-
cidation, or will receive it when the work is presented for adoption.
*Duponceau's address at the opening of the law academy at Philadelphia.
14
REPORT ON
It may, however, be proper to notice a change which is proposed in
the law of principals and accessaries. As it now stands, two species
of offenders are designated by this general name; distinguished by an
awkward periphrase, into "accessaries before the fact" and "accessaries
after the fact." As there is scarcely any feature in common between
the offences designated by these two denominations, I have taken away
the general appellation, and called the first an accomplice, leaving the
description of accessary exclusively to the second. In fact, how can
the odious offence of plotting a crime, and instigating another to perform
that which the contriver has not courage himself to execute; how can
this be assimilated to the act of relieving a repentant and supplicant
offender, who invokes our pity, and relies on our generosity? An act,
which, though justice may censure, humanity cannot always condemn.
The first class now includes some acts which are so much identified
with those which constitute the offence, that it was thought more sim-
ple, as well more just, to arrange them under the same head, and by
destroying useless distinctions, greatly restrict the number of crimes
of complicity.
Under the second head, our law now calls for the punishment of
acts, which, if not strictly virtues, are certainly too nearly allied to
them to be designated as crimes. The ferocious legislation which first.
enacted this law, demands (and sometimes under the penalty of the most
cruel death) the sacrifice of all the feelings of nature, of all the sentiments.
of humanity; breaks the ties of gratitude and honour; makes obedience to
the law to consist in a dereliction of every principle that gives dignity 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 com-
panions of his infancy, should expel nature from their hearts, and hu-
manity from their feelings; that they should barbarously discover his
retreat, or with inhuman apathy, abandon him to his fate. The hus-
band 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 adopt-
ing, 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 secretly,
saying, let us go and serve other gods, thou shalt not consent. . . . Nei-
ther shall thine eye pity him. . . . neither shalt thou conceal him ; . . . .
thou shalt surely kill him ; . . . . thou shalt stone him with stones.”
Almighty power might counteract, for its own purposes, the feelings
THE PLAN OF A PENAL CODE.
15
of humanity, but a mortal legislator should not presume to do it; and
in modern times, such laws are too repugnant to our feelings to be fre-
quently executed; but that they may never be enforced, they should
be expunged from every code which they disgrace. The project pre-
sented 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 particular ties of gratitude or friend-
ship cannot be distinguished by law: they must be left for the consider-
ation of the pardoning power.
I proceed to the plan of the third book, the most important in the
work: 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 punishment 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 poss-
ible that in the end, something like the contravention of 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 pro-
visions, 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,
16
REPORT ON
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 bodies may
be found, when they come to be defined, 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 classi-
fication 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 ad-
mitted in this code. It has not; because its insertion would be con-
trary to some of the fundamental principles which have been laid down
for framing it.
The
Suicide can never be punished but by making the penalty (whether
it be forfeiture or disgrace) fall exclusively upon the innocent.
English mangle the remains of the dead. The inanimate body feels
neither the ignominy nor pain. The mind of the innocent survivor
alone is lacerated by this useless and savage butchery, and the dis-
grace 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-de-
struction, deprives his family of the support he ought to afford them;
and the law completes the work of ruin, by harrowing up their feel-
ings; covering them with disgrace; and depriving them by forfeiture
of their means of subsistence.
Vengeance, we have said, is unknown to our law; it cannot, there-
fore, 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, that
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 his feelings, and restrain him by
the fear of the disgrace and ruin with which you threaten his family,
your law has no effective sanction; but humanity forbids this; the le-
gislator that threatens it, is guilty of the most refined tyranny. If he
THE PLAN OF A PENAL CODE.
17
carries 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 in-
stitutions peculiar to the people where it has been known, but which can-
not 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 their pudicity, the familiarity
their minds must acquire with the most disgusting images, would, it is
firmly believed, be most injurious in its effects: and if there was no
other objection, ought to make us pause before we submitted such de-
tails 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: be-
cause, 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 pro-
ceedings must be public, a single trial of this nature would do more in-
jury 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 circumstan-
tial evidence, where direct proof is not easily procured, and where,
from the nature of the crime, a prejudice is created by the very accu-
sation.
In designating the acts which should be declared offences, I could
not confine the selection to such as were already prevalent in this coun-
try: 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 prohi-
bitions only as apply to acts which the present, and probably the future
state of society, in our country, may require to be repressed.
The penal laws of most countries have an ample department allotted
C
18
REPORT ON
:
to offences against religion, because most countries have an established
religion which must be supported in its superiority by the penalties of
temporal laws. Here, where no pre-eminence 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 punishing 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 of-
fences 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 punishment 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 provisions 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 puň-
ished for exercising it? I have a right to possess my property, yet
the law does not confine itself to a declaration that I shall not be pun-
ished 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 ques-
tion 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 anomaly may, in states governed by the common law, be account-
ed for by the reflection, that every breach of a constitutional privilege
might there be considered as a misdemeanor, and punished as such, al-
though 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 constructive offen-
ces, 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 author-
ity which may abridge this valuable privilege, is declared to be an of
fence. 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 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 re-
peal it, and that the legislature which could so far forget their duty as to
violate the constitution, would certainly abrogate the law by which
THE PLAN OF A PENAL CODE.
19
it was made punishable. To this I answer, that the consequence does
not follow. Attacks on constitutional rights are seldom openly or di-
rectly made; the repeal of this part of the code would be an acknow-
ledgement 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, opera-
tions and plans, they would never dare openly to declare their fears.
But by means of these provisions in your code, all those insidious at-
tempts 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 ap-
ply amendments and ameliorations with greater effect. But that they
are not intended, in any manner, to have a constructive 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 natu-
rally 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 com-
mission 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 Eng-
lish law.
It
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; second-
ly, by its effects on the delinquent himself; taking away, by restraint, his
power; and by reformation, his desire of repeating the offence. No pun-
ishments, 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 reformation with example, are the best adapted to the end.
would be disgusting and unnecessary to pass in review all the modes of
punishment which 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 acknowledged,
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;
20
REPORT ON
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 im-
prisonment; imprisonment in chains; confiscation of property; exposure
to public derision; labour on public works; mutilation and other indel-
ible 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 ano-
ther. The convict who is forced from one country, must take refuge
in another; and wherever he goes, he carries with him his disposition
to break the laws and corrupt the morals of the country. The same
crimes which make him unfit to reside in his own, render him mis-
chievous 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 reci-
procal, 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 efficient, because return
is more difficult than from simple banishment. It also operates favoura-
bly sometimes, by producing reformation, and while enforced, effectu-
ally 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 was 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.*
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
* A very respectable witness, examined before the house of commons, says, "as to trans-
portation, 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, reconciles 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."
THE PLAN OF A PENAL CODE.
21
general assembly: they are written with ingenuity, but under the cir-
cumstances 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 of employment, even when men are at
liberty, leads them to evil associations, and the proverb does not much
exaggerate, which calls it the root of all evil. But when to idleness is
joined an association with all that is most profligate and unprincipled,
it may be easily imagined how quick must be the progress from inno-
cence to vice, from vice to crime. The band of the guilty thus collected,
acquire a knowledge of each other's capacity in the commission of of-
fences; they feel their strength, they recruit their numbers, they organ-
ize themselves for their warfare on society, and come out completely
disciplined and arrayed against the laws.
Imprisonment in irons has all the evils of simple imprisonment, and
adds to them that of inequality, and the danger of arbitrary imposition.
The weight of the chains, if regulated by law, must be a torture to the
weak, while the robust delinquent will bear them without pain. If
they are at the discretion of the jailor, there can be no better engine
for petty tyranny and extortion.
Confiscation of property has few advocates, and ought to have none.
It has every defect that can attach to a mode of punishment, except
that it is in some degree remissible; it is unequal, because it forfeits
for the same offence the largest and the smallest fortune. It is cruel,
because it deprives numbers of the means of subsistence for the fault of
one. It is unjust, for it punishes, without distinction, the innocent as
well as the guilty. It is liable to the worst of abuses, because it makes
it the interest of the government to multiply convictions. This last
characteristic is perhaps the reason why it retains a place in the penal
jurisprudence of Europe.
The next four heads may be classed together: the pillory, stocks,
and other contrivances for public exposure, labour in chains, and on
the public works, indelible marks of disgrace (always attended with
bodily pain), and the infliction of stripes, all are liable to the same radi-
cal objections; they all discard the idea of reformation; all are unequal,
and subject to arbitrary imposition; with the exception of public labour,
they are all momentary in their application, and when the operation is
over, they impose a necessity on the patient, with the alternative of
starving, immediately to repeat his offence; he accordingly, with in-
creased dexterity, commences a new career; forms a corps of similar
associates to prey upon society; seduces others by the example of his
impunity in the numerous instances in which he escapes detection;
swells the list of convictions in those where his vigilance is defeated,
and finally becomes a fit subject for the grand remedy-the punish-
ment of death. I approached the inquiry into the nature and effect of
this punishment with the awe becoming a man who felt, most deeply,
his liability to err, and the necessity of forming a correct opinion on a
point so interesting to the justice of the country, the life of its citizens,
and the character of its laws. I strove to clear my understanding from
all prejudices which education, or early impressions might have created,
and to produce a frame of mind fitted for the investigation of truth,
22
REPORT ON
and the impartial examination of the arguments on this great question.
For this purpose, I not only consulted such writers on the subject as
were within my reach, but endeavoured to procure a knowledge of the
practical effect of this punishment on different crimes in the several
countries where it is inflicted. In my situation, however, I could draw
but a very limited advantage from either of these sources: very few
books on penal law, even those most commonly referred to, are to be
found in the scanty collections of this place, and my failure in procur-
ing information from the other states, is more to be regretted on this
than any other topic on which it was requested. With these inade-
quate means, but after the best use that my faculties would enable me
to make of them; after long reflection, and not until I had canvassed
every argument that could suggest itself to my mind, I came to the
conclusion, that the punishment of death should find no place in the
code which you have directed me to present. In offering this result,
I feel a diffidence, which arises, not from any doubt of its correctness;
I entertain none; but from the fear of being thought presumptuous in
going beyond the point of penal reform, at which the wisdom of the
other states has hitherto thought proper to stop; and from a reluctance
to offer my opinions in opposition to those (certainly more entitled to
respect than my own) which still support the propriety of this punish-
ment for certain offences. On a mere speculative question, I should
yield to this authority; but here I could not justify the confidence you
have reposed in me, were I to give you the opinions of others, no
matter how respectable they may be, instead of those which my best
judgment assured me were right.
The example of the other states is certainly entitled to great respect;
the greater, because all, without exception, still retain this punishment;
but this example loses some of its force when we reflect on the slow
progress of all improvement, and on the stubborn principles of the
common law, which have particularly retarded its advance in jurispru-
dence.
In England, their parliament had been debating for near a century
before they would take off capital punishment from two or three cases,
in which every body allowed it was manifestly cruel and absurd: they
have retained it in at least an hundred others of the same description; and
when we reflect on these facts, and observe the influence which the
prevailing opinions of that country have always had on the literature
and jurisprudence of ours, we may account for the several states having
stopped short in the reform of their penal law, without supposing them
to have arrived at the point of perfection, beyond which it would be
both unwise and presumptuous to pass. As to the authority of great
names, it loses much of its force since the mass of the people have be-
gan to think for themselves; and since legislation is no longer con-
sidered as a trade, which none can practise with success, but those
who have been educated to understand the mystery; the plain matter
of fact, practical manner, in which that business is conducted with us,
refers more to experience of facts than theory of reasoning: more to
ideas of utility drawn from the state of society, than from the opinions
of authors on the subject. If the argument were to be carried by the
authority of names, that of Beccaria, were there no other, would ensure
the victory. But reason alone, not precedent nor authority, must
justify me in proposing to the general assembly this important change;
THE PLAN OF A PENAL CODE.
23
reason alone can persuade them to adopt it. I proceed therefore to
develope the considerations which carried conviction to my mind, but
which being perhaps now more feebly urged than they were then felt,
may fail in producing the same effect upon others. A great part of my
task is rendered unnecessary, by the general acknowledgement, univer-
sal, I may say, in the United States, that this punishment ought to be
abolished in all cases, excepting those of treason, murder and rape.
In some states arson is included; and lately, since so large a portion of
our influential citizens have become bankers, brokers, and dealers in
exchange, a strong inclination has been discovered to extend it to
forgery, and uttering false bills of exchange. As it is acknowledged
then to be an inadequate remedy for minor offences, the argument will
be restricted to an inquiry, whether there is any probability that it will
be more efficient in cases of greater importance. Let us have constantly
before us, when we reason on this subject, the great principle, that the
end of punishment is the prevention of crime. Death, indeed, operates.
this end most effectually, as respects the delinquent; but the great ob-
ject of inflicting it is the force of the example on others.
If this spec-
tacle of horror is insufficient to deter men from the commission of slight
offences, what good reason can be given to persuade us that it will have
this operation where the crime is more atrocious? Can we believe
that the fear of a remote and uncertain death will stop the traitor in the
intoxicating moment of fancied victory over the constitution and liber-
ties of his country? While in the proud confidence of success, he
defies heaven and earth, and commits his existence to the chance of
arms, that the dread of this punishment will "check his pride;" force
him, like some magic spell, to yield obedience to the laws, and aban-
don a course which, he persuades himself, makes a "virtue" of his
"ambition.” Will it arrest the hand of the infuriate wretch, who,
at a single blow, is about to gratify the strongest passion of his soul in
the destruction of his deadly enemy? Will it turn aside the purpose
of the secret assassin, who meditates the removal of the only obstacle
to his enjoyment of wealth and honours? Will it master the strongest
passions and counteract the most powerful motives, while it is too weak
to prevent the indulgence of the slightest criminal inclination ? If this
be true, it must be confessed, that it presents a paradox which will be
found more difficult to solve, when we reflect that great crimes are, for
the most part, committed by men whose long habits of guilt have
familiarized them to the idea of death; or to whom strong passions or
natural courage have rendered it, in some measure, indifferent; and
that the cowardly poisoner or assassin always thinks that he has taken
such precautions as will prevent any risk of discovery. The fear of
death, therefore, will rarely deter from the commission of great crimes.
It is, on the contrary, a remedy peculiarly inapplicable to those offences.
Ambition, which usually inspires the crime of treason, soars above the
fear of death; avarice, which whispers the secret murder, creeps below
it; and the brutal debasement of the passion that prompts the only
other crime, thus punished by our law, is proverbially blind to conse-
quences, and regardless of obstacles that impede its gratification-threats
of death will never deter men who are actuated by these passions;
many of them affront it in the very commission of the offence, and
therefore readily incur the lesser risk of suffering it, in what they think
the impossible event of detection. But present other consequences
24
REPORT ON
more directly opposed to the enjoyments which were anticipated in
the commission of the crime, make those consequences permanent and
certain, and then, although milder, they will be less readily risked than
the momentary pang attending the loss of life; study the passions.
which first suggested the offence, and apply your punishment to mortify
and counteract them. The ambitious man cannot bear the ordinary
restraints of government-subject him to those of a prison; he could
not endure the superiority of the most dignified magistrate-force him
to submit to the lowest officer of executive justice; he sought, by his
crimes, a superiority above all that was most respectable in society-
reduce him in his punishment to a level with the most vile and abject
of mankind. If avarice suggested the murder-separate the wretch
for ever from his hoard; realize the fable of antiquity; sentence him,
from his place of penitence and punishment, to see his heirs rioting on
his spoils; and the corroding reflection that others are innocently enjoy-
ing the fruits of his crime, will be as appropriate a punishment in prac-
tical as it was feigned to be in poetical justice. The rapacious spend-
thrift robs to support his extravagance, and murders to avoid detec-
tion; he exposes his life that he may either pass it in idleness, debauche-
and sensual enjoyment, or lose it by a momentary pang-disappoint
his profligate calculation; force him to live, but to live under those
privations which he fears more than death; let him be reduced to the
coarse diet, the hard lodging, and the incessant labour of a penitentiary.
ry
Substitute these privations, which all such offenders fear, which they
have all risked their lives to avoid; substitute these, to that death which
has little terror for men whose passions or depravity have forced them to
plunge in guilt, and you establish a fitness in the punishment to the
crime; instead of a momentary spectacle, you exhibit a lesson, that is
every day renewed; and you make the very passions which caused the
offence the engines to punish it, and prevent its repetition.
Reformation is lost sight of in adopting this punishment, but ought
it to be totally discarded? May not even great crimes be committed
by persons whose minds are not so corrupted as to preclude the hope
of this effect. They are, sometimes, produced by a single error. Of-
ten are the consequences of a concatenation of circumstances never
likely again to occur, and are very frequently the effect of a momentary
hallucination, which, though not sufficient to excuse, ought sometimes
to palliate the guilt; yet the operation of these several causes, the evi-
dent gradation in the degrees of guilt which they establish, are levelled
before this destructive punishment. The man who, urged by an irre-
sistible impulse of nature, sacrifices the base seducer who has destroyed.
his domestic happiness; he who having been calumniated, insulted
and dishonoured, at the risk of his own life takes that of the slanderer;
are, in the eye of this harsh law, equally deserving of death with the
vile assassin who murders for hire, or poisons for revenge; and the
youth, whose weakness in the commission of a first offence has yielded
to the artful insinuations or overbearing influence of a veteran in vice,
must perish on the same scaffold with the hardened and irreclaimable
instigator of his crime. It may be said, that the pardoning power is
the proper remedy for this evil; but the pardoning power, in capital
cases, must be exercised, if at all, without loss of time; without that
insight into character which the penitentiary system affords. It is
therefore, necessarily liable to abuse; and there is this further objection
THE PLAN OF A PENAL CODE.
25
to its exercise, that it leaves no alternative between death and entire
exemption from punishment; but in every degree of crime, some pun-
ishment is necessary; the novice, if subject to no reclaiming discipline,
will soon become a professor in guilt but let the corrective be judi-
ciously applied, and its progress will discover whether he may be again
trusted in society, or whether his depravity is so rooted as to require
continued confinement.
In coming to a resolution on this solemn subject, we must not forget
another principle we have established, and I think on the soundest
reasons, that other things being equal, that punishment should be pre-
ferred, which gives us the means of correcting any false judgment, to
which passion, indifference, false testimony, or deceiving appearances,
may have given rise. Error from these, or other causes, is sometimes
inevitable, its operation is instantaneous, and its fatal effects in the pun-
ishment of death, follow without delay: but time is required for its
correction; we retrace our steps with difficulty; it is mortifying to
acknowledge that we have been unjust, and during the time requisite
for the discovery of the truth, for its operation on our unwilling minds,
for the interposition of that power, which alone can stop the execution
of the law, its stroke falls, and the innocent victim dies. What would
not then the jurors who convicted; the judges who condemned; the
mistaken witness who testified to his guilt; what would not the whole
community who saw his dying agonies, who heard, at that solemn
moment, his fruitless asseverations of innocence; what would they not
all give to have yet within their reach the means of repairing the
wrongs they had witnessed or inflicted ?
Instances of this kind are not unfrequent; many of them are on re-
cord; several have taken place in our own day, and a very remarkable
example which was given but a few years since, in one of the northern
states, shows, in a striking manner, the danger of those punishments
which cannot be recalled or compensated, even though the innocence
of the sufferer is rendered clear to demonstration. A few such instances,
even in a century, are sufficient to counteract the best effects that could
be derived from example. There is no spectacle that takes such hold
on the feelings as that of an innocent man suffering by an unjust sen-
tence; one such example is remembered, when twenty of merited
punishment are forgotten; the best passions take part against the laws,
and arraign their operation as iniquitous and inhuman. This consider-
ation alone, then, if there were no others, would be a most powerful
argument for the abolition of capital punishments; but there are others
no less cogent.
To see a human being in the full enjoyment of all the faculties of
his mind, and all the energies of his body; his vital powers attacked
by no disease; injured by no accident; the pulse beating high with
youth and health; to see him doomed by the cool calculation of his
fellow-men to certain destruction, which no courage can repel, no art
or persuasion avert; to see a mortal distribute the most awful dispen-
sations of the Deity, usurp his attributes, and fix, by his own decree,
an inevitable limit to that existence which Almighty power alone can
give, and which its sentence alone should destroy; must give rise to
solemn reflections, which the imposing spectacle of a human sacrifice
naturally produces, until its frequent recurrence renders the mind in-
sensible to the impression. But in a country where the punishment
D
26
REPORT ON
of death is rarely inflicted, this sensation operates in all its force; the
people are always strongly excited by every trial for a capital offence;
they neglect their business, and crowd round the court; the accused,
the witnesses, the counsel, every thing connected with the investiga-
tion becomes a matter of interest and curiosity; when the public mind
is screwed up to this pitch, it will take a tone from the circumstances
of the case, which will rarely be found to accord with the impartiality
acquired by justice.
If the accused excite an interest from his youth, his good character,
his connections, or even his countenance and appearance, the dreadful
consequences of conviction, and that, too, in the case of great crimes ast
well as minor offences, lead prosecutors to relax their severity, wit-
nesses to appear with reluctance, jurors to acquit against evidence, and
the pardoning power improperly to interpose. If the public excite-
ment take another turn, the consequences are worse; indignation
against the crime is created into a ferocious thirst of vengeance; and
if the real culprit cannot be found, the innocent suffers on the slightest
presumption of guilt; when public zeal requires a victim, the innocent
lamb is laid on the altar, while the scape-goat is suffered to fly to the
mountain. This savage disposition increases with the severity and
the frequency of capital inflictions, so that in atrocious as well as in
lighter offences, this species of punishment leads sometimes to the escape
of the guilty, often to the conviction of the innocent.
Whoever has at all observed the course of criminal proceedings,
must have witnessed what I have just endeavoured to describe; unde-
served indulgence, unjust severity; opposite effects proceeding from
the same cause; the unnecessary harshness of the punishment.
But when no such fatal consequences are to be the result, the course
of justice is rarely influenced by passion or prejudice. The evidence
is produced without difficulty, and given without reluctance; it has its
due effect on the minds of jurors, who are under no terrors of pro-
nouncing an irremediable sentence: and pardons need not be granted,
unless innocence is ascertained, or reformation becomes unequivocal.
Another consequence of the infliction of death is, that if frequent it
loses its effect; the people become too much familiarized with it to
consider it as an example; it is changed into a spectacle, which must
frequently be repeated to satisfy the ferocious taste it has formed. It
would be extremely useful in legislation, if the true cause could be dis-
covered of this atrocious passion for witnessing human agonies and
beholding the slaughter of human beings. It has disgraced the history
of all nations; in some it gave rise to permanent institutions, like that
of the gladiators in Rome; in others it has shown itself like a moral
epidemic, which raged with a violence proportioned to the density of
population, for a limited time, and then yielded to the influence of
reason and humanity. Every people has given us instances of this de-
lirium; but the religious massacre of St Bartholomew, and the politi-
cal slaughters during the reign of terror in France, exemplify, in a
striking manner, the idea I mean to convey. The history of our own
country, young as it is, is not free from this stain. The judicial mur-
der of the wizards and witches of New England, and of a great num-
ber of poor wretches, during what was called the negro-plot at New
York, furnish us with domestic lessons on this subject. The human
sacrifices which we find in the early history of almost every nation,
THE PLAN OF A PENAL CODE.
27
pro-
proceeded from another cause, the idea of vicarious atonement for sins;
but they were attended with the same heart-hardening effect. Human
sufferings are never beheld, for the first time, but with aversion, terror
and disgust. Nature has strongly implanted this repugnance on our ✯
minds, for the wisest purposes: but this once conquered, it happens in
the intellectual taste, as it does in that of the senses: in relation to
which last, it is observed, that we become most fond of those enjoy-
ments which required, in the beginning, some effort to overcome the
disgust produced by their first use; and that our attachment to them
is in proportion to the difficulty which was conquered in becoming
familiarized to them. Whatever may be the cause of this striking fact,
in the history of the human mind, its effects ought to be studied by
the legislator who desires to form a wise and permanent system.
If
the sight of one capital execution creates an inhuman taste to behold
another; if a curiosity, satisfied at first with terror, increases with its
gratification, and becomes a passion by indulgence, we ought to be ex-
tremely careful how, by sanctioning the frequency of capital punish-
ments, we lay the foundation for a depravity, the more to be dreaded,
because, in our government, popular opinion must have the greatest in-
fluence on all its departments, and this vitiated taste would soon be
discovered in the decisions of our courts and the verdicts of our juries.
But if this punishment be kept for great occasions, and the people
are seldom treated with the gratification of seeing one of their fellow-
creatures expire by the sentence of the law; a most singular effect is
duced; the sufferer, whatever be his crime, becomes a hero or a saint;
he is the object of public attention, curiosity, admiration, and pity.
Charity supplies all his wants, and religion proves her power, by ex-
hibiting the outcast and murderer, though unworthy to enjoy existence
upon earth, yet purified from the stain of his vices and crimes, con-
verted by her agency into an accepted candidate for the happiness of
heaven; he is lifted above the fear of death by the exhortations and
prayers of the pious; the converted sinner receives the tender atten-
tions of respectability, beauty and worth his prison becomes a place
of pilgrimage, its tenant, a saint awaiting the crown of martyrdom;
his last looks are watched, with affectionate solicitude; his last words
are carefully remembered and recorded; his last agonies are beheld
with affliction and despair; and after suffering the ignominous sentence
of the law, the body of the culprit, whose death was infamy, and whose
life was crime, is attended respectfully and mournfully to the grave,
by a train that would not have disgraced the obsequies of a patriot or
a hero.
This sketch, though highly coloured, is drawn from life: the
inhabitants of one of the most refined and wealthy of our state capitals,
sat for the picture; and although such exalted feelings are not always
excited, or are prudently repressed, yet they are found in nature, and
in whatever degree they exist, it cannot be doubted, that in the same
proportion, they counteract every good effect that punishment is in-
tended to produce. The hero of such a tragedy can never consider
himself as the actor of a mean or ignoble part; nor can the people view
in the object of their admiration or pity, a murderer and a robber,
whom they would have regarded with horror, if their feelings had not
been injudiciously enlisted in his favour. Thus the end of the law is
defeated, the force of example is totally lost, and the place of execu-
tion is converted into a scene of triumph for the sufferer, whose crime
28
REPORT ON
is wholly forgotten, while his courage, resignation, or piety, mark him
as the martyr, not the guilty victim, of the laws.
Where laws are so directly at war with the feelings of the people
whom they govern, as this and many other instances prove them to
be, these laws can never be wise or operative, and they ought to be
abolished.
Quid leges sine moribus, vanæ proficiunt? But if laws unsup-
ported by the morals of the people are inefficient, how can we reason-
ably expect that they will have any effect when they are counteracted
by moral feelings as well as by ideas of religion. This is the effect of
capital punishments in a country where they are not commonly in-
flicted. Let us now see what is their result, where they are unhappily
too frequent.
In England, a great portion of the eloquence and learning, and all
the humanity of the nation are at work, in an endeavour, not to abolish
the punishment of death (that proposition would be too bold in a gov-
ernment where reform, in any department, might lead to revolution
in all), but to restrict it to the more atrocious offences. This has pro-
duced a parliamentary inquiry, in the course of which the reports, to
which I have alluded before, were made; one of them contains the ex-
aminations of witnesses before a committee of the house of commons.
From one of these, that of a solicitor who had practised for more than
twenty years in the criminal courts, I make the following extracts:
6
"In the course of my practice, I have found that the punishment of
death has no terror upon a common thief; indeed, it is much more the
subject of ridicule among them, than of serious deliberation. The
certain approach of an ignominious death does not seem to operate
upon them; for after the warrant has come down, I have seen them
treat it with levity. I once saw a man, for whom I had been con-
cerned the day before his execution, and on offering him condolence,
and expressing my concern at his situation, he replied with an air of
indifference, players at bowls must expect rubbers; and this man I
heard say, that it was only a few minutes, a kick and a struggle, and
all was over. The fate of one set of culprits, in some instances, had
no effect, even on those who were next to be reported for execution ;
they play at ball and pass their jokes as if nothing was the matter. I
have seen the last separation of persons about to be executed. There
was nothing of solemnity about it, and it was more like the parting
for a country journey, than taking their last farewell. I mention these
things, to show what little fear common thieves entertain of capital
punishment; and that so far from being arrested in their wicked courses
by the distant possibility of its infliction, they are not even intimid-
ated by its certainty."
Another of those respectable witnesses (a magistrate of the capital)
being asked, whether he thought that capital punishment had much
tendency to deter criminals from the commission of offences, answered,
"I do not. I believe it is well known to those who are conversant with
criminal associations in this town, that criminals live and act in gangs and
confederacies, and that the execution of one or more of their own body,
seldom has a tendency to dissolve the confederacy, or to deter the re-
maining associates from the continuance of their former pursuits. In-
stances have occurred within my own jurisdiction, to confirm me in
this opinion. During one sitting, as a magistrate, three persons were
THE PLAN OF A PENAL CODE.
29
brought before me for uttering forged notes. During the investigation,
I discovered that those notes were obtained from a room in which the
body of a person named Wheller (executed on the preceding day, for
the same offence) then was laid, and that the notes in question were
delivered for circulation by a woman with whom he had been living.
This is (he adds) a strong case, but I have no doubt that it is but one
of very many others."
The ordinary of Newgate, a witness better qualified than any other
to give information on this subject, being asked, "Have you made any
observations as to the effect of the sentence of death upon the prison-
ers ?" answers—“It seems scarcely to have any effect upon them; the
generality of people under sentence of death are thinking, or doing
rather, any thing than preparing for their latter end." Being interro-
gated as to the effect produced by capital executions on the minds of
the people, he answers, "I think, shock and horror at the moment,
upon the inexperienced and the young, but immediately after the scene
is closed, forgetfulness altogether of it, leaving no impression on the
young and inexperienced. The old and experienced thief says, the
chances have gone against the man who has suffered; that it is of no
consequence, that it is what was to be expected; making no serious im-
pression on the mind. I have had occasion to go into the press-yard
within an hour and a half after an execution, and I have there found
them amusing themselves, playing at balls or marbles, and appearing
precisely as if nothing had happened."
No colouring is necessary to heighten the effect of these sketches.
Nothing, it appears to me, can more fully prove the utter inutility of
this waste of human life, its utter inefficiency as a punishment, and its
demoralizing operation on the minds of the people.
The want of authentic documents prevents me at present from laying
before the general assembly some facts which would elucidate the sub-
ject, by examples, from the records of criminal courts in the different.
states. The prevalence of particular offences, as affected by the changes
in their criminal laws; the number of commitments, compared with
that of convictions; and the effect which the punishment of death has
on the frequency of the crimes for which it is inflicted; accurate infor-
mation on these heads would have much facilitated the investigation in
which we are engaged. But although from the causes which I have
stated, these are not now within our reach; there are yet some facts
generally known on the subject, which are not devoid of interest or
instruction. Murder, in all the states, is punished with death; in most
of them it is, except treason (which never occurred under the state
laws), the only crime that is so punished. If this were the most effi-
cacious penalty to prevent crimes, this offence would be the one of
which we should see the fewest instances. Is it so? To answer this
question, we must establish a comparison, not between it and other
offences, that would never lead us to a true result; there are some
crimes that are so destructive of the very existence of society, create
such universal alarm, and suppose so great a depravity, that the perpe-
trator is always viewed with abhorrence by the whole community, and
public execration would inflict a punishment, even if the laws were si-
lent. The number of such crimes, therefore, whatever may be the
punishment assigned to them, must necessarily be fewer, in proportion,
than those which do not inspire the same horror, or spread the same
30
REPORT ON
alarm; of this nature is murder; we must, therefore, look to other
countries, to establish our point of comparison.
Unfortunately, the crime is punished in the same manner as it is
here, in the only country we have sufficient data to reason upon, and
therefore the result of the inquiry cannot be conclusive; but if in that
country a number of other offences are punished with death, which do
not incur that penalty here, and if those minor offences prevail in a much
greater degree there than they do here, where they are not so punish-
ed, while murder, and robbery with intent to murder (almost the only
crimes punished in that manner here), be more frequently committed
in this country than in that which I select for the comparison, then we
shall have some reason to doubt the efficacy of this violent remedy.
In London and Middlesex, for sixteen years ending in 1818, thirty-
five persons were convicted of murder, and stabbing with intent to
murder, which is an average of a fraction more than two in a year. In
the city of New Orleans, seven persons suffered for the same crime,
in the space of the last four years, which is very little less than the
same average; but the population of New-Orleans did not, during the
period, amount to more than 35,000, which is to that of Middlesex and
London, in round numbers, as one to twenty-seven; therefore, the
crime of murder was nearly twenty-seven times as frequent, in propor-
tion to numbers, as in London. Almost the same proportion holds
between the whole state and England and Wales, in relation to this
crime; nineteen executions having taken place for murder, in the last
seven years, in Louisiana, and one hundred and fifty-four during the
seven years, ending in 1818, in England and Wales. In London and
Middlesex, eight hundred and eighty-five persons were convicted of for-
gery and counterfeiting in seven years, ending in 1818. During an equal
period, seven persons were convicted of the same offence in the whole
state, which makes the crime eighteen times more frequent in London,
in proportion to number, than it is here. Six thousand nine hundred and
seventy-four convictions for larceny took place in the same seven years
in London: and for a like period, in the state of Louisiana, one hun-
dred, which is near ten to one more there than here, in proportion to
the population. Many capital convictions were had there, for crimes
of which none were committed here, and which, if they had been,
would have been punished only by imprisonment at hard labour. I
well know that the state of society in the two countries, the degree
of temptation, the ease or difficulty of obtaining subsistence, and other
circumstances, as well as the operation of the laws, may produce the
difference I have shown. But does it not raise serious doubts as to
the efficacy of the capital punishment, to observe this double effect,
that almost the only crime which we punish in that manner, is more
frequent in the proportion of twenty-seven to one, while those which
are the object of a milder sanction, are almost in the same ratio less
than in the country with which we make the comparison?
The laws of none of the states punish highway robbery with death;
those of the United States affix this punishment to the robbery of the
mail, under circumstances which generally accompany it. Yet it is
believed, that this last species of highway robbery is more frequent
than the other-another proof that the fear of death is not a more pow-
erful preventative of crime than other punishments.
I do not urge the doubts which many wise and conscientious per-
sons have entertained of the right of inflicting this punishment, because
THE PLAN OF A PENAL CODE.
31
I am inclined to think that the right can be well established. If this
measure be the only one that can prevent the crime, government has
a right to adopt it, unless the evil arising from the punishment be
greater than that which could be apprehended from the offence. If it
were proved, that the fruit in a garden could not be preserved without
punishing the boys who stole it with death, the evil to be appre-
hended from the offence is so much less than that produced by the
punishment, that it ought never to be inflicted by the law, much less
(as in the case of the English spring-guns) by the party injured; but
on the contrary, it is a less evil to destroy the life of an assassin, than
to permit him to take that of a man, whose existence is useful to his
country, and necessary to his family. Whenever, therefore, in this
latter case the alternative is proved to be the only one, I do not think
we ought to hesitate from any doubt of the right but if the necessity
of the punishment, as well as the preponderating evil of the crime,
cannot be clearly shown, the right cannot exist. The burthen of ar-
gument rests here on those who advocate this punishment; they must
show that it is the only means of repressing the offence: they must
show, that in the cases to which they mean to apply it, the evil of the
offence is greater than the punishment. How far they can succeed in
the first part of this task, has been already, in part, examined; on the
latter branch of the position it may be proper to observe, that in esti-
mating the evil resulting from the impunity of any particular offence,
in order to compare it with that of the punishment, we must recollect,
that the one is a certain, the other a problematical evil. For instance,
a man commits murder; if it were certain, if you did not put him to
death, either that he himself would repeat the offence, or that the
example of his impunity would induce another to do it, the case both
of necessity to prevent crime, and of the preponderating evil of the
offence over that of the remedy, would be made out. But it does not
follow, because a man has once committed a crime, he will therefore
repeat it, nor that another will be seduced by his example to do so;
both, I grant, are probable; then we have the probability of two evils
to put in competition with the certainty of one; but a strong proba-
bility of a great evil ought to countervail the certainty of a smaller
one; and if in this instance the probability be great, that society might
suffer the loss of its worthiest citizens, this ought not to be placed.
in competition with the evil of putting an assassin to death. But if
by other means, the chance of the uncertain evil can be reduced to a
bare possibility, then the certain evil should not be incurred. Admit-
ting, therefore, that the infliction of death is the best means of prevent-
ing the repetition of the offence, yet if perpetual imprisonment would
as effectually prevent the offender from repeating it, and would also
operate as an example, so as to reduce to a possibility the chance of
another being induced by the mildness of the punishment to commit.
the crime, then the certain evil of taking away human life ought not
to be incurred, because the remote possibility of even a great evil
cannot justify it.
But before we adopt any of these calculations (always liable to the
greatest difficulty in practice), we ought to inquire whether the position
which alone renders them necessary be true; whether the punishment
of death is necessary to prevent offences. In the proper sense of the
expression, we know this is not the case; to say that a certain single
cause is necessary to produce a given effect, supposes, that if the cause
32
REPORT ON
exist, the effect will certainly follow; but it is not pretended that the
punishment of death will, in all cases, prevent the crime for which it
is inflicted; all that is meant is, that it is better adapted to that end
than any other kind of punishment: some reasons have already been
given to show that it is not. Let us examine those which are usually
given on the affirmative side of this interesting question.
""
First. There are those who support it by arguments drawn from re-
ligion. The divine spirit infused into the great legislator of the Jews,
from whose code these arguments are drawn, was never intended to in-
spire a system of universal jurisprudence. The theocracy given as a
form of government. to that extraordinary people, was not suited to any
other; as little was the system of their penal laws, given on the mys-
terious mountain, promulgated from the bosom of a dark cloud, amid
thunder and lightning; they were intended to strike terror into the
minds of a perverse and obdurate people; and as one means of effect-
ing this, the punishment of death is freely denounced for a long list of
crimes; but the same authority establishes the lex talionis, and other
regulations, which those who quote this authority would surely not
wish to adopt. They forget that the same Almighty author of that law,
at a later period, inspired one of his prophets with a solemn assurance,
that might with propriety be placed over the gates of a penitentiary,
and confirmed it with an awful asseveration," As I LIVE, saith the
LORD GOD, I have no pleasure in the DEATH of a sinner, but rather that
he should TURN FROM HIS WICKEDNESS AND LIVE. They forget, too,
although they are Christians who use this argument, that the divine
author of their religion expressly forbids the retaliatory system, on
which the punishment of death for murder is founded; they forget the
mild benevolence of his precepts, the meekness of his spirit, the phi-
lanthropy that breathes in all his words, and directed all his actions; they
lose sight of that golden rule which he established: "To do nothing
to others that we would not desire them to do unto us ;" and certainly
pervert the spirit of his holy and merciful religion, when they give it
as the sanction for sanguinary punishments. Indeed, if I were inclined
to support my opinion by arguments drawn from religion, the whole
New Testament should be my text, and I could easily deduce from it
authority for a system of reform as opposed to one of extermination.
But although the legislator would be unworthy of the name, who should
prescribe any thing contrary to the dictates of religion, and particularly
to those of that divine morality on which the Christian system is
founded, yet it would be not less dangerous, to make its dogmas the
ground-work of his legislation, or to array them in defence of political
systems. In a government, where all religions have equal privileges,
it would be obviously unjust; it would lessen the reverence for sacred,
by mixing them with political institutions, and perverting to temporal
uses those precepts which were given as rules for the attainment of
eternal happiness.
Secondly. The practice of all nations, from the remotest antiquity,
is urged in favour of this punishment; the fact, with some exceptions,
is undoubtedly true, but is the inference just? There are general er-
rors, and unfortunately for mankind, but few general truths, established
by practice, in government legislation. Make this the criterion, and
despotism is, by many thousand degrees on the scale of antiquity, better
than a representative government: the laws of Draco were more an-
THE PLAN OF A PENAL CODE.
33
cient than those of Solon, and consequently better; and the practice
of torture quite as generally diffused as that of which we are now treat-
ing. Idolatry in religion, tyranny in government, capital punish-
ments, and inhuman tortures in jurisprudence, are coeval and coexten-
sive. Will the advocates of this punishment admit the force of their
argument in favour of all these abuses? If they do not, how will they
apply it to the one for which they argue ?
•
The long and general usage of any institution gives us the means of
examining its practical advantages or defects: but it ought to have
no authority as a precedent, until it be proved, that the best laws are
the most ancient, and that institutions for the happiness of the people
are the most permanent and most generally diffused. But this unfor-
tunately cannot be maintained with truth; the melancholy reverse
forces conviction on our minds. Every where, with but few except-
ions, the interest of the many has, from the earliest ages, been sacrificed
to the power of the few. Every where penal laws have been
framed to support this power; and those institutions, favourable to free-
dom, which have come down to us from our ancestors, form no part of
any original plan, but are isolated privileges which have been wrested
from the grasp of tyranny, or which have been suffered, from inatten-
tion to their importance, to grow into strength.
Every nation in Europe has, during the last eight or ten centuries,
been involved in a continual state of internal discord or foreign war:
kings and nobles continually contending for power; both oppressing
the people, and driving them to desperation and revolt.
Different pre-
tenders, asserting their claims to the throne of deposed or assassinated
kings; religious wars; cruel persecutions; partition of kingdoms;
cessions of provinces; succeeding each other with a complication and
rapidity that defies the skill and diligence of the historian to unravel
and record. Add to this, the ignorance in which the human mind was
involved, during the early and middle part of this period; the intol-
erant bigotry, which from its close connection with government, stifled
every improvement in politics as well as every reformation in religion;
and we shall see a state of things certainly not favourable for the for-
mation of wise laws on any subject; but particularly ill calculated for
the establishment of a just or humane criminal code. From such legis-
lators, acting in such times, what could be expected, but that which we
actually find; a mass of laws unjust, because made solely with a view
to support the temporary views of a prevailing party; unwise, obscure,
inhuman, inconsistent, because they were the work of ignorance, dic-
tated by interest, passion and intolerance. But it would scarcely seem
prudent to surrender our reason to authorities thus established, and to
give the force of precedent to any of the incoherent collections of absurd,
cruel, and contradictory provisions which have been dignified with the
name of penal codes, in the jurisprudence of any nation in Europe, as
their laws stood prior to the last century. No one would surely advise
this; why then select any part of the mass, and recommend it to us,
merely because it has been generally practised? If there is any other
reason for adopting it, let that be urged, and it ought to have its weight;
but my object here is to show, that from the mode in which the penal
laws of Europe have, until a very late period, been established, very
little respect is due to them merely on account of their antiquity, or of
the extent to which they have prevailed. If the criminal jurisprudence
E
*
34
REPORT ON
:
of the modern and middle ages affords us little reason to revere either
its humanity or justice; that of the ancient world does not give us more.
The despotism of antiquity was like that of modern times, and such as
it will always be; it can have but one character, which the rare occur-
rence, of a few mild or philosophic monarchs does not change and in
the laws of the republics, there was a mixture of severity and indul-
gence, that makes them very improper models for imitation. Yet in
Rome, for about two hundred and fifty years, from the date of the
valerian law until the institutions of the republic were annihilated by
the imperial power, it was not lawful to put a Roman citizen to death for
any crime; and we cannot learn from history that offences were unusu-
ally prevalent during that period; but we do know that when executions.
became frequent, Rome was the receptacle of every crime and every vice.
It must, however, be confessed, that we have not sufficient information.
to determine whether the frequency of capital punishments was the
cause or the effect of this depravity.
Modern history affords us two examples which deserve to be attended
to in this discussion. The empress Elizabeth of Russia, soon after she
came to the throne, abolished the pain of death in all her extensive do-
minions; her reign lasted twenty years, giving ample time to try the
effect of the experiment: and Beccaria speaks with enthusiasm of the
consequences it had produced. I have not been able to procure the regu-
lations by which this change was effected, but as I believe the knout (an
infliction more cruel than a speedy death) was preserved, I do not urge.
this example as having the same weight it would have, if milder pun-
ishments had been substituted. Three years after Elizabeth had ceased to
reign in the north of Europe, her great experiment was renewed in the
south. Leopold became grand duke of Tuscany, and one of his first acts
was a declaration (rigidly adhered to during his reign) that no offence
should be punished with death; he substituted a mild system of graduated
punishments, and though I do not think they were very judiciously
chosen, yet the consequence was, an immediate decrease in the number
of offences. We are informed, that during a considerable period, the
prisons were empty, and no complaints for atrocious offences occurred;
and he himself, after an experiment of twenty years, declares, "that
the mitigation of punishments, joined to a most scrupulous attention to
prevent crimes, and also great despatch in the trial, together with a
certainty and suddenness of punishment to real delinquents, had, instead
of increasing the number of crimes, considerably diminished that of the
smaller ones, and rendered those of an ATROCIOUS NATURE VERY RARE.
This passage is extracted from the introduction to a code which he gave
to his people in the year 1786: four years afterwards, he was called to
the empire, and the further course of his noble experiment was inter-
rupted. How far the old system was re-established, I am not accu-
rately informed, but some travellers represent, that the new state of
things forms a contrast very much in favour of the Leopold code.
These instances, I think, turn the scale of argument as it applies to the
authority of example; if we can rely on that of Tuscany (and it seems
perfectly well authenticated), it proves the inefficiency of capital pun-
ishments, in great as well as smaller offences, and it is of more weight
than the united practice of all the nations of the world where the pun-
ishment is retained, but where it has never been found effectual to re-
press the prevalence of crimes.
""
THE PLAN OF A PENAL CODE.
35
1
The third and last argument I have heard urged, is nearly allied to
the second; it is, the danger to be apprehended from innovation. I
confess, I always listen to this objection with some degree of suspicion.
That men who owe their rank, their privileges, their emoluments, to
abuses and impositions, originating in the darkness of antiquity, and
consecrated by time; that such men should preach the danger of inno-
vations, I can well conceive; the wonder is, that they can find others
weak and credulous enough to believe them. But in a country where
these abuses do not exist; in a country whose admirable system of
government is founded wholly on innovation, where there is no anti-
quity to create a false veneration for abuses, and no apparent interest
to perpetuate them; in such a country, this argument will have little
force against the strong reasons which assail it. Let those, however,
who honestly entertain this doubt, reflect that, most fortunately for
themselves and for their posterity, they live in an age of advancement:
not an art, not a science, that has not in our day made rapid progress
towards perfection. The one of which we now speak has received
and is daily acquiring improvement; how long is it since torture was
abolished? Since judges were made independent? Since personal
liberty was secured, and religious persecution forbidden? All these
were, in their time, innovations as bold at least as the one now pro-
posed. The true use of this objection, and there I confess it has force,
is to prevent any hazardous experiment, or the introduction of any
change that is not strongly recommended by reason. I desire no other
test for the one that is now under discussion, but I respectfully urge,
that it would be unwise to reject it, merely because it is untried, if we
are convinced it will be beneficial. Should our expectations be disap-
pointed, no extensive evil can be done; the remedy is always in our
power: Although an experiment, it is not a hazardous one, and the..
only inquiry seems to be, whether the arguments and facts stated in its
favour, are sufficiently strong to justify us in making it. Indeed, it ap-
pears to me that the reasoning might, with some propriety, be retorted
against those who use it, by saying "all punishments are but experi-
ments to discover what will best prevent crimes; your favourite one of
death has been fully tried. By your own account, all nations, since the
first institution of society, have practised it, but you yourselves must
acknowledge, without success. All we ask, then, is that you abandon
an experiment which has for five or six thousand years been progress-
ing under all the variety of forms which cruel ingenuity could invent;
and which in all ages, under all governments, has been found wanting.
You have been obliged reluctantly to confess that it is inefficient, and
to abandon it in minor offences; what charm has it then which makes
you cling to it in those of a graver cast? You have made your experi-
ment; it was attended in its operation with an incalculable waste of
human life; a deplorable degradation of human intellect; it was found
often fatal to the innocent, and it very frequently permitted the guilty
to escape. Nor can you complain of any unseasonable interference
with your plan that may account for its failure: during the centuries
that your system has been in operation, humanity and justice have never
interrupted its course; you went on in the work of destruction, always
seeing an increase of crime, and always supposing that increased sever-
ity was the only remedy to suppress it: the mere forfeiture of life was
too mild; tortures were superadded, which nothing but the intelligence
36
REPORT ON
of a fiend could invent, to prolong its duration and increase its torments;
yet there was no diminution of crime; and it never occurred to you,
that mildness might accomplish that which could not be effected by
severity." This great truth revealed itself to philosophers, who im-
parted it to the people; the strength of popular opinion at length forced
it upon kings, and the work of reformation, in spite of the cry against
novelty, began. It has been progressive. Why should it stop, when
every argument, every fact, promises its complete success? We could
not concur in the early stages of this reformation; perhaps the credit
may be reserved to us of completing it; and I therefore make no apology
to the general assembly for having so long occupied them with this dis-
cussion. In imposing so important a change, it was necessary to state
the prominent reasons which induced me to think it necessary; many
more have weighed upon my mind, and on reviewing these, I feel with
humility and regret how feebly they are urged. The nature of the
subject alone will, however, create an interest sufficient to promote in-
quiry, and humanity will suggest arguments which I have not had
sagacity to discover or the talent to enforce.
Having stated the reasons which induced me to discard all the differ-
ent punishments which have been reviewed, I proceed to a short dis-
cussion of those which have been adopted. These are
Pecuniary fines; degradation from office; simple imprisonment; tem-
porary suspension of civil rights; permanent deprivation of civil rights;
imprisonment at hard labour; solitary confinement during certain
intervals of the time of imprisonment, to be determined in the sentence.
The advantage of this scale of punishment is, that it is divisible al-
most to infinity; that there is no offence, however slight, for which it
does not afford an appropriate corrective; and none, however atro-
cious, for which, by cumulating its different degrees,.an adequate pun-
ishment cannot be found.
When to these are added the regulations which are made in certain
cases, as to the nature of food and other comforts, during the term of
punishment, it has, in an almost perfect degree, the essential quality of
being capable of apportionment, not only to any species of offence, but
to every offender. Sex, age, habits, constitution, every circumstance
which ought to determine the exercise of discretionary power, may
have its proper weight.
Reformation of the criminal may reasonably be expected.
He is effectually restrained from a repetition of his crime.
A permanent and striking example is constantly operating to deter
others.
The punishment being mild, public feeling will never enlist the
passions of the people in opposition to the law.
The same cause will ensure a rigid performance of their duty by
public officers.
Jurors, from a false compassion, will seldom acquit the guilty; and
if by chance or prejudice they should convict the innocent, their error
or fault is not as in the cases of infliction of stripes-permanent stigmas,
or death-without the reach of redress..
These are advantages which render the penitentiary system decidedly
superior to any other.
To detail the mode in which these different punishments are com-
posed and applied to the different offences, would be to repeat the pro-
THE PLAN OF A PENAL CODE.
37
visions of the whole book, which cannot be expected from the nature
of this report; enough, and I fear more than enough, has been said
on this division of the work.
I proceed to the plan of the fourth book, which, as we have seen,
is intended to give rules of practice in all criminal proceedings.
It regulates the mode in which complaints and accusations are to be
made; designates the proper persons to receive them, and directs their
duty in conducting the examination; taking the evidence on the com-
plaint, and ordering the arrest; prescribes the form of warrants; and
designates precisely the cases where arrests may be made without
them. It prescribes minutely the duties, and defines the authority,
as well of officers as of individuals, who assist them in making arrests.
It regulates the mode of conducting the examination, and the man-
ner of making commitments, so as to avoid the frequent escapes of
the guilty from the former defective practice on this head.
The manner in which the person is to be treated, during his con-
finement, is minutely detailed; provisions are introduced to prevent
or punish all abuses of authority in those who arrest or have charge
of the prisoner.
Rules are laid down for directing the discretion of the magistrate,
and ascertaining his duties in admitting to bail.
The manner in which accusations, and the evidence to support them,
are to be brought before the proper court, is distinctly described.
Rules are presented for the organization and mode of conducting
business before grand juries. Their duties are defined, as are those
of the public prosecutor, in presenting indictments before them.
The cases are distinguished which are to be prosecuted by indict-
ment, from those in which information may be filed.
Rules are laid down for drawing acts of accusation, so as to secure
a proper degree of certainty in the allegation of the offence, but to
prevent the escape of the guilty from formal defects.
The mode of making the arraignment; the manner of pleading; the
rules for conducting the trial; the duties of the judge; of the advocate
for the accused, and of the public prosecutor, in relation to it, are mi-
nutely marked out.
Regulations are made for summoning, swearing, and challenging
jurors, and for their government on the trial, and on the delivery of
the verdict.
Directions are given for summoning and securing the attendance of
witnesses.
The causes are designated for which judgments may be arrested
and new trials granted, and all the proceedings subsequent to the ver-
dict are provided for.
A chapter is dedicated to the regulation of the manner in which.
search-warrants are to be granted and executed, and another to the
designation of the cases in which security may be required against the
commission of apprehended offences. Contempts are defined, and the
mode of trying and punishing them is marked out.
The last chapter of this book contains a system of proceeding on
writs of habeas corpus.
This chapter will be the first act of legislation in our state on this
subject; important enough, it would seem, to have sooner engaged our
attention. This writ was known in a remote period of the English
38
REPORT ON
law, but it was a precept without a sanction, and therefore totally in-
efficient until the statute passed in the 31st year of Charles II. gave it
force and efficacy, and made it a feature in their jurisprudence, of which
any nation might be proud, and which all ought to imitate or adopt.
The mechanism of this admirable contrivance for securing personal
liberty is so simple, its effects are so decisive, that we are led to won-
der why it was not sooner put in operation, especially in a nation which
at so early a period made it a stipulation with their king, that "no
freeman should be imprisoned but by the law of the land." Indeed the
`writ itself was known in the Roman law by the name of the interdict
de homine libero exhibendo; but it was applicable only to the case of
a freeman claimed as a slave; and we do not find that even in that case
there were any provisions to enforce its execution on the contrary,
there was one which permitted any person to refuse obedience, who
chose rather to pay for the man, estimating his value as if he was a
slave. In no stage of its history, therefore, was this writ of any im-
portance until the spirit of liberty, nearly extinguished under the ener-
getic despotism of the Tudors, rose superior to the weakness of the
Stuarts, and inspired the declaration of those principles of personal
and political rights, on which our republics are chiefly founded. One
of the most important measures which this spirit suggested, was the
habeas corpus act; it directs the manner in which the writ is to issue;
imposes penalties for disobedience to it, and makes a number of saluta-
ry provisions to prevent delays and abuses in criminal proceedings.
In all the Atlantic states, this statute was a part of the law by which
they were governed at the time they became independent; and it was
either expressly or impliedly adopted with the whole body of their
municipal laws. In those states, therefore, nothing more was neces-
sary than to guard against its suspension by a constitutional clause.
But here the case was different, the common law of England was not
in force here, still less were its statutes. Neither could form part of
our law, unless specially re-enacted. Yet the framers of our constitu-
tion, not attending to this difference, contented themselves with tran-
scribing from the constitutions of other states, the provision that "the
privilege of the writ of habeas corpus shall not be suspended, unless
when in cases of rebellion or invasion the public safety may require
it." But no law had before, or has been since passed, defining what
the writ of habeas corpus was, or directing the manner in which it
was to be obtained, how it was to be executed, what was to be its ef-
fect, or what the penalty of disobeying it. If the writ alone be intro-
duced without the provisions for enforcing it, it could be of as little use
here as it was in England before the statute of Charles II.; if the
statute be introduced, do we stop at that of Charles? or are those of
16 George I. and 38 of George III. re-enacted by this laconic legisla-
tion? If either of them are, they involve, as applied to us, great absur-
dities for they contain many provisions which are purely local, all of
them referring to courts and to magistrates which do not exist under
our laws; and impose penalties which are not recoverable here;
and yet on which the whole efficacy of the act depends. So that
whatever construction we put on this clause in our constitution, it
must be confessed, that without some statute to define and enforce the
great privilege of which it declares we shall not be deprived, the pro-
vision can be of little use. Hitherto the necessity for this remedy has
THE PLAN OF A PENAL CODE.
89
been so strongly felt, that judges have not scrupulously examined their
right to afford it; and even when improperly granted, so strongly is it
supported by public opinion, that parties, though they have sometimes
evaded its operation, have never thought proper to question its legality.
It has held its authority, therefore, by the moral sense of the people,
exerting its influence in support of an institution which they have been
taught from their infancy to venerate and admire, rather than by the
constraint of law. But times may come
But times may come ; in the natural
in the natural progress of
human affairs must come; when public opinion will have less force,
and without the aid of law for its support, will prove a feeble barrier
against encroachment.
The offences against personal liberty, which are most dangerous, are
those that are committed for political purposes, and as the means of
silencing opposition to unconstitutional and revolutionary measures.
All the energies of the law, armed with its strongest sanctions, and di-
rected by the most efficient measures to secure its execution then become
necessary. The magnitude of the evil, therefore, concurring with the
probability of its occurrence, calls for the attention of the legislature to
this important subject. In examining the different enactments of this
justly celebrated statute, every friend of freedom must be grateful to its
authors for the extensive, and it is devoutly to be hoped, the lasting
benefit they have conferred on mankind. Ten millions of freemen
have already consecrated it among their fundamental rights, and the
rising republics of the new world will not fail to adopt so precious an
institution, when they review and finally establish their constitutional
compacts.
This is the greatest glory a wise nation can desire; to see its princi-
ples recognized; its institutions adopted; its laws copied, not only by
men speaking the same language, and bred in a similarity of manners,
but translated into different languages, adapting themselves to different
habits; incorporated in different codes, and in all, acknowledged as the
first of blessings. And the trial of a cause, by an independent jury, on
the banks of the La Plata or the Oroonook; or the writ of habeas cor-
pus adopted by a representative assembly in Mexico and Peru, ought
to afford more satisfaction to an Englishman, who loves the honour of
his country, than the most splendid triumph of her arms. We must
_not, however, suffer our admiration of any institution to blind us to its
faults or prevent us, when we are about to adopt it, from scrutinizing
severely all its provisions, and carefully inquiring whether in its ope-
ration, defects have not been discovered, which a prudent attention.
might amend. In examining the English statute with this view, some
important omissions have been observed; and in the project presented
to you, an attempt has been made to remedy them. Some of the most
important ought to be enumerated.
1. The great object of this writ; that, which constitutes its chief
excellence, I may say its only use, is the promptitude and efficacy
with which it acts. To borrow a phrase from another branch of juris-
prudence, it is a writ for "specific performance," or it is nothing. In
all civilized countries, there are actions given for injuries to personal
liberty but no nation, until England set the example, provided any
means for the immediate cessation of the evil. This law enforces it by
attachment, fines and penalties; in most cases, these are effectual: but
there are circumstances in which the party injured would obtain no re-
40
REPORT ON
lief, and the offender would escape punishment, notwithstanding the
provisions of the statute. A person may be unlawfully arrested, and
forcibly embarked, to be conveyed out of the country; the writ of
habeas corpus may issue; it may even be served in time, but if the
party to whom it is directed choose to make an insufficient return, no
other process can issue until that return has been received, debated,
and determined to be insufficient; and then, it is not a compulsory
process, but a penal one, which is awarded; not giving liberty to the
prisoner, but punishing the party for his disobedience, who detains
him ; in the mean time the sufferer may be conveyed out of the king-
dom, or some other irreparable injury may be inflicted on him. This
is a case which must probably have often occurred in England, by
abuses under their press-warrants; by military encroachments, and for
purposes of private vengeance or public oppression. Recent as has
been the establishment of our government, an outrageous and well-
known example of this abuse took place here; an evasive return was
made and repeated, and while the court was occupied in determining
its validity, a number of citizens were carried out of the state by a
military officer, on a groundless charge of political crimes.
To prevent the occurrence of an evil of this kind, an article has been
inserted, directing, whenever a case is made out to justify the issuing
of this writ, accompanied by proof, that deportation, or any other
irremediable injury is apprehended; or whenever the writ is disobeyed,
that the magistrate shall, instead of the habeas corpus, issue his warrant
to bring the prisoner, and the party in whose custody he is held, be-
fore him, that the one may be released and the other committed for
trial, in all cases in which those steps may be required by law.
2. Under the English law, the return is taken for true, and the only
remedy is an action against the person who makes a false return; a
doctrine utterly subversive of the true intent of the act, and which, in
many cases, has rendered it nugatory. This doctrine was established
on a reference to the twelve judges, by the house of lords, in 1757,
and was enforced in the case of American seaman impressed on board
of English vessels; the captain returned, that they had voluntarily en-
listed, and without any other evidence, they were remanded to their
slavery, and told, that if they survived the war, and could find any one
to bring an action for a false return, on proving it, they might obtain
relief. This glaring defect is removed by the law presented to you;
and the mode is prescribed for examining into the truth of a return
when it is controverted.
3. The judges in the case alluded to, determined unanimously, that
the provisions made for awarding and returning writs of habeas corpus
immediately, do not extend to any case but those of a criminal or sup-
posed criminal nature. Mr Justice Bathurst, it is true, adds to his
opinion, that although the statute did not extend to other cases, yet the
justices of the king's bench had, in favour of liberty, extended the same
relief to all cases.
To give full effect to this remedy, it is proposed expressly to extend
it to every case of illegal imprisonment and restraint.
4. By the English practice, when a prisoner is brought up on habeas
corpus, if the commitment be informal, he is discharged, although suf-
ficient evidence may exist to justify his detention for trial.
The plan
proposes a remedy for this evil, by obliging the officer who brings up
THE PLAN OF A PENAL CODE.
41
the prisoner, to produce the evidence on which he was committed, and
directing the judge before whom the writ is returned, to re-commit him
if the evidence warrant it.
As the whole of this chapter is submitted, it is not necessary to
notice any other of the omissions which have been supplied, or the
defects which it has been attempted to remedy. A strong impress-
ion of the utility of this great writ, has rendered me particularly de-
sirous to increase the facility of procuring it; to enlarge the sphere of
its relief; to give an adequate sanction to each of the provisions that
are enacted; to impress upon the people the utility of preserving it and
the danger of suffering it to be violated, and to show the value we place.
on this and other institutions of freedom, not by suffering them to re-
main imperfect from a blind reverence for their antiquity, but by
studying to improve, or, if possible, to perfect them, and by leaving to
our children, not only unimpaired, but augmented, those privileges be-
queathed to us by the wisdom and patriotism of our fathers.
The great objects in the execution of this division of the work, have
been to protect the innocent from ill-founded prosecutions, and even the
guilty from vexation, in the manner of conducting those which were
necessary to ascertain their guilt. But at the same time, to insure the
exact execution of the laws, and as far as possible to destroy the effect
of those devices which professional ingenuity has so frequently used
to procure the escape of the guilty. Some new provisions have been
introduced to effect these objects, but where they could be obtained
without innovation, none have been proposed.
In those cases my en-
deavours have been confined to the arrangement of the law applicable
to the different divisions, under its proper heads; and to giving precise
and intelligible language to the rules of procedure. Even a slight no-
tice of all the points in which changes or modifications of the present
law have been suggested, would extend this report, already too long,
to an inconvenient size. It may not be amiss, however, to mention a
prohibition of those charges, which the judge frequently uses as the
means of diffusing his political tenets, displaying his eloquence, and
sometimes gratifying his passions; and of those presentments of the same
nature, by which the jury recommend candidates to office, denounce
public measures, or eulogize the virtues of men in power; such proceed-
ings were thought beneath the dignity of the magistrate, and inconsist-
ent with the sanctity of that body, whose functions of public accusers,
and guardians of the liberty and reputation of their fellow-citizens,
require calm investigation, undisturbed by intemperate discussions. If
an ordinary court of justice be properly called the temple of that high
attribute of the deity, we may, without too far extending the metaphor,
term the tribunal of criminal jurisdiction, a shrine in that temple; the
holy of holies, into which impure or unworthy passion should find no
admittance, and where no one ought to officiate until he has put off the
habits of ordinary life, and assumed, with the holy robes of his func-
tion, that purity of intention, that ardent worship of truth, so incon-
sistent with the low pursuits of interest, the views of ambition or the
vanity of false talent. Party spirit unfortunately will, in some degree,
influence every other department; from the nature of our government
it must exist, but it will do no material injury, while it is felt in the le-
gislative, or even in the executive branches; but if it once find admit-
tance to the sanctuary of justice, we may be assured, that the vitals of
F
42
REPORT ON
t
our political constitution are affected, and I can imagine no better means
of facilitating this corruption, than permitting your judges to make po-
litical harangues to a jury, who reply by a party presentment.
Another article applicable to the trial, restricts the charge of the judge
to an opinion of the law, and to the repetition of the evidence, only
when required by any one of the jury: the practice of repeating all
the testimony from notes, always (from the nature of things) imperfect-
ly, not seldom inaccurately, and sometimes carelessly, taken, has a
double disadvantage; it makes the jurors, who rely more on the judges'
notes than their own memory, inattentive to the evidence; and it
gives them an imperfect copy of that, which the nature of the trial by
jury requires they should record in their own minds. Forced to rely
upon themselves, the necessity will quicken their attention, and it will
be only when they disagree in their recollection, that recourse will be
had to the notes of the judge. There is also another and more cogent
reason for the restriction. Judges are generally men who have grown
old in the practice at the bar. With the knowledge which this expe-
rience gives, they also acquire a habit, very difficult to be shaken off,
of taking a side in every question that they hear debated, and when the
mind is once enlisted, their passions, prejudices, and professional
ingenuity are always arrayed on the same side, and furnish arms for the
contest. Neutrality cannot, under these circumstances, be expected; but
the law should limit, as much as possible, the evil that this almost in-
evitable state of things must produce. In the theory of our law, judges
are the counsel for the accused, in practice they are, with a few ho-
nourable exceptions, his most virulent prosecutors. The true principles
of criminal jurisprudence require that they should be neither. Per-
fect impartiality is incompatible with these duties. A good judge
should have no wish that the guilty should escape, or that the innocent
should suffer; no false pity, no undue severity should bias the unshaken
rectitude of his judgment; calm in deliberation, firm in resolve,
patient in investigating the truth, tenacious of it when discovered; he
should join urbanity of manners to dignity of demeanour, and an in-
tegrity above suspicion, to learning and talent; such a judge is what,
according to the true structure of our courts, he ought to be-the pro-
tector, not the advocate of the accused; his judge, not his accuser; and
while executing these functions, he is the organ by which the sacred
will of the law is pronounced. Uttered by such a voice, it will be
heard, respected, felt, obeyed; but impose on him the task of argu-
ment, of debate; degrade him from the bench to the bar; suffer him to
overpower the accused with his influence, or to enter the lists with his
advocate, to carry on the contest of sophisms, of angry arguments, of
tart replies, and all the wordy war of forensic debate; suffer him to do
this, and his dignity is lost; his decrees are no longer considered as the
oracles of the law; they are submitted to, but not respected; and even
the triumph of his eloquence or ingenuity, in the conviction of the ac-
cused, must be lessened by the suspicion, that it has owed its success to
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.
THE PLAN OF A PENAL CODE.
43
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 crim-
inal 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, indictments, and convic-
tions 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 il-
lustrations of the rules it contains cannot be given without greatly ex-
ceeding the limits of an ordinary report. It may be proper, however,
under this head, to notice that an attempt is made to enforce the sanc-
tion 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 suc-
cess 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 class-
ification, 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 nei-
ther, 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 con-
stant association; and it would be more reasonable to put a man in
a pest-house, to cure him of a headach, 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 essen-
tial 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
pre-
cisc 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 reason-
able discretion in cases where considerations of humanity require it.
44
REPORT ON
In order to frame these regulations to advantage, it would be very
advisable to obtain more information than we now possess, of the prac-
tical 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 pro-
vision for giving education to the young offenders, and moral and re-
ligious 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 than some who have never
committed any offence of sufficient magnitude to incur the same disci-
pline. But reformation is not enough; although sincere, it will not be
lasting, if the distrust of society shall drive the repentant sinner from
its bosom; deny him the means of subsistence, and force him to seek
it in a new association with his former companions 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 with-
out 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 se-
verity 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 inconsistent 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 forward-
ness, I have selected the second book, and the last chapter of the
fourth, as specimens of the execution*. The one being chiefly an enun-
ciation of general principles, and the other necessarily confined to mat-
ters 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
* This report was made before the completion of the "System of Penal Law," the pub-
lication of which now renders the insertion of these specimens unnecessary.
THE PLAN OF A PENAL CODE.
45
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 di-
vision 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 information, which I hope
to obtain by a personal inspection of the prisons, has unavoidably de-
layed what I have to add to the sixth and last book.
I have only to add, on this subject, that from the progress already
made, I hope that the whole system will be presented at the next ses-
sion. And I submit to the legislature, whether it would not be proper
to direct, that when finished it shall be printed for the inspection of the
members.
This report is intended to apprize the representatives of the people
what changes are proposed to be made in their criminal jurisprudence;
to inform them why these changes are deemed necessary; to lay before
them a plan of the whole work; to announce the principles on which
it is established; and by the exhibition of a part, to show in what man-
ner it may be reasonably expected that the whole will be executed.
In performing this duty, the line traced by the law under which I
was appointed, has been scrupulously adhered to. In its execution, I
claim no other merit than that of diligence, and a most conscientious
desire to perform it in such a manner as will best reconcile humanity
with justice, and the great interests of freedom with both.
The representatives of a free people, although they may do nothing to
forfeit the confidence of their constituents, cannot always expect to re-
tain the power of serving them. A spirit of change is inherent in our
government; it gives it energy, and is even necessary to its existence.
We appear in public life; perform or neglect the duties assigned to us;
and then, pushed off the stage by younger, more active, or more popu-
lar candidates, we return to the mass of our fellow-citizens; in common
with them, to suffer the evils or enjoy the benefits of the measures we
have adopted. It is not always that, in the brief space allotted to us
for the performance of our functions, we have an opportunity of mak-
ing it an epoch in the annals of our country, by institutions, with which
a grateful posterity will identify the names of those by whose patriotic
labours they were established. This rare occasion now presents itself
for your acceptance.
If the work which your wisdom has directed, and which your sound
judgment, experience and care will modify and correct, should effect
the object of giving to your country a penal code, founded on true
principles-concise, correct, humane, easily understood, guarding with
the same scrupulous care the rights of the poorest citizen and of the
most influential member of society; inforcing firmly, not harshly, a
strict obedience to the laws; repressing with an even hand the abuses
of office and the license of insubordination; protecting the good, re-
straining, punishing and reforming the wicked; arraying the best feel-
ings and most powerful passions, as well as the understanding on the
side of the law; making disobedience unwise and inattractive, as well
as dangerous; arming all your institutions with public opinion, and di-
recting its irresistible force against vices and crimes; rendering your
46
REPORT, &c.
judges venerated as the oracles of justice, and your courts respected as
its sanctuary. Should this be the result, few public bodies can boast a
fairer claim than you will then have to the approbation of their con-
stituents and the gratitude of posterity. For you will have rendered
an essential service, not only to your own country, by securing its in-
ternal peace, and establishing its reputation for wisdom and justice, but
to the other states, by giving them an useful and honourable example,
and to the whole world, by demonstrating the ease and safety with
which abuses are corrected, and improvements introduced under a free
government, and exemplifying its superiority by this proof of the
rapid progress it has enabled you to make in the science of legislation,
during the few years you have enjoyed it. And the grateful prayers
of the innocent whom you will have saved, of the guilty you will
have reformed, and of the whole community whose feelings will no
longer be lacerated by public exhibitions of suffering and of death, will
combine with your own consciousness of rectitude, in drawing down
a blessing on your lives, and diffusing a glow of happiness over that
hour, when the remembrance of one measure effected for the interests
of humanity or the permanent good of our country, will be of more
value than all the fleeting and unsatisfactory recollections of success in
the pursuits of fortune or ambition.
All which is respectfully submitted.
EDWARD LIVINGSTON.
A SYSTEM
OF
PENA L
FOR
LAW,
THE STATE OF LOUISIANA :
CONSISTING OF
A CODE OF CRIMES AND PUNISHMENTS,
A CODE OF PROCEDURE,
A CODE OF EVIDENCE,
A CODE OF REFORM AND PRISON DISCIPLINE,
A BOOK OF DEFINITIONS.
PREPARED,
UNDER THE AUTHORITY OF A LAW OF THE SAID STATE,
BY
EDWARD LIVINGSTON.
INTRODUCTORY REPORT
TO
THE SYSTEM OF PENAL LAW,
PREPARED FOR
THE STATE OF LOUISIANA.
I LAY before the general assembly, with unaffected diffidence, the
system which they directed me to prepare. This feeling, however,
does not arise from any apprehension that the work has not been
framed according to the spirit of the instructions that were given for
its execution; they have been constantly before me. Nor have I
entertained any doubt of the correctness of the principles on which
those instructions were founded; on the contrary, every new view
that unfolded itself, as I gave them the form of practical precept, con-
vinced me of their wisdom and utility. But in strictly following good
rules according to the best of my judgment, that judgment must fre-
quently have erred. To apply general principles to the numerous
subdivisions of criminal jurisprudence, so that the same spirit might
pervade its different branches of sanction, procedure, evidence, and
discipline, presented a task which nothing but the highest presumption
could hope to perform without falling into many errors. Of my own
fallibility no one can be more sensible than I am, and no one could have
taken greater precautions to correct it. Not a provision has been made,
without the deepest reflection upon its consequences. Not a line has
been written, that was not sent to every quarter of the union in search
of amendment. Not a suggestion has been offered, that has not been
adopted, without pride of opinion, when it brought conviction to my
mind; and the long list of corrections, at the end of the printed copies,
attest how slight my attachment has been to preconceived ideas, or to
the language in which they were expressed, when either my own re-
flection, or the advice of others, convinced me that they might be
amended. The codes, as they are now presented, have been produced
by the exercise of my best faculties, faithfully and laboriously employ-
ed, under the direction of a religious desire to perform the high duty
G
50
INTRODUCTORY REPORT TO
entrusted to me, so as, in some degree, to realize the great views of
those by whom I was appointed.
Cheered and encouraged in the very outset of the work by the ap-
probation which the general assembly bestowed on the plan and the
specimens which accompanied it, I proceeded with alacrity in the exe-
cution of my task; and in its progress, had the satisfaction to receive
testimonials equally calculated to stimulate my exertion. Some of them
I have obtained leave to communicate with this report. They all con-
cur in the utility of the projected reform. Some speak in the highest
style of encomium on the honour the state has acquired by leading the
way in effecting it; and when the high terms, in which the friendship
of some, and the politeness of others, have induced them to speak of
the execution of the work, are reduced to their just value, most of them
contain reflections that will be found of great use in the discussion of
the codes.
Well aware of the difficulties of my task, but feeling a conviction
that they were not insurmountable, I undertook it with so much con-
fidence as was necessary to sustain me in its execution; but with that
distrust of my own powers, which made me submit to the test of long
reflection and severe scrutiny every principle I laid down and every
provision intended to give it effect. I made these my leading rules-
to adopt no theory, by whatever specious argument supported, until I
should be convinced of its practical utility; diligently to seek for infor-
mation, but to admit nothing upon the mere authority of high names;
to make no unnecessary innovation, but boldly to propose every change.
I should think practicable and useful. This process unavoidably con-
sumed much time; but, by assiduous labour, in little more than two
years after my plan had received the sanction of your predecessors, I
had completed the work. Its destruction in the autumn of the year
1824 was communicated to the general assembly, and produced a re-
solution giving me another year to renew it. This was to be done
entirely from recollection, for not a written vestige of my former labour
remained; and the task of recomposition, always irksome, was inter-
rupted and rendered more difficult by the interference of engagements,
which, supposing my undertaking finished, I had made for the ensuing
year. These circumstances, while they afford a reason, and perhaps
an excuse for delay, will render negligent error more unpardonable.
The enunciations of fact as well as of principle, contained in the law
under which I have acted, and the resolution approving of the plan
which was prepared in conformity with its provisions, might seem to
preclude the necessity of saying any thing to show that a reform in our
criminal jurisprudence was called for, or that the directions contained
in the law were proper in order to effect it. But when it is considered,
that the general assembly has been twice changed since those acts were
passed, and that all the enemies of reformation have been industriously
at work during that period in urging arguments against the contemplated
change, it may not be deemed, I hope, improper to attempt, in this re-
port, a refutation of arguments and a disproval of allegations calculated
to mislead, and to perpetuate the degrading state of subjection to un-
written, and therefore necessarily unknown laws.
The law of 1820 recites, "that it is of primary importance in every
well regulated state, that the code of criminal law should be founded
THE SYSTEM OF PENAL LAW.
51
on one principle-the prevention of crime; that all offences should
be clearly and explicitly defined in language generally understood;
that punishments should be proportioned to offences; that the rules of
evidence should be ascertained as applicable to each offence; that the
mode of procedure should be simple, and the duty of magistrates, ex-
ecutive officers, and individuals assisting them, should be pointed out by
law; AND THAT THE SYSTEM OF CRIMINAL LAW, BY WHICH THIS
STATE IS NOW GOVERNED, IS DEFECTIVE IN MANY OR ALL OF THE
22
POINTS ABOVE ENUMERATED. Two years afterwards another general
assembly, with the approbation of the governor, resolved, "that
they approve of the plan proposed by Edward Livingston, in his re-
port made in pursuance of an act, entitled, an act relative to the
criminal laws of this state," and earnestly solicit Mr Livingston to
prosecute this work according to the said report ;" and thereby added
their sanction to a development of the same enunciations contained
in the preamble to the code which was submitted for their consideration.
This will be frequently referred to, and I therefore quote it at length:
"No act of legislation can be, or ought to be, immutable. Changes
are required by the alteration of circumstances; amendments, by the
imperfection of all human institutions; but laws ought never to be
changed without great deliberation, and a due consideration as well of
the reasons on which they were founded, as of the circumstances under
which they were enacted. It is therefore proper, in the formation of
new laws, to state clearly the motives for making them, and the prin-
ciples by which the framers were governed in their enactment. With-
out the knowledge of these, future legislatures cannot perform the task
of amendment, and there can be neither consistency in legislation, nor
uniformity in the interpretation of laws.
"For these reasons the general assembly of the the state of Louis-
iana declare, that their objects in establishing the following code
are-
"To remove doubts relative to the authority of any parts of the
penal law of the different nations by which this state, before its inde-
pendence, was governed.
"To embody into one law and to arrange into system such of the
various prohibitions enacted by different statutes as are proper to be
retained in the penal code.
"To include in the class of offences, acts injurious to the state and
its inhabitants, which are not forbidden by law.
"To abrogate the reference, which now exists, to a foreign law for
the definition of offences and the modes of prosecuting them.
"To organize a connected system for the prevention as well as for
the prosecution and punishment of offences.
To collect into written codes, and to express in plain language,
all the rules which it may be necessary to establish, for the protection
of the government of the country, and the persons, property, condition,
and reputation of individuals; the penalties and punishments attached
to a breach of those rules; the legal means of preventing offences, and
the forms of prosecuting them when committed; the rules of evidence,
by which the truth of accusations are to be tested; and the duties of
executive and judicial officers, jurors, and individuals, in preventing,
prosecuting, and punishing offences to the end that no one need be
52
INTRODUCTORY REPORT TO
ignorant of any branch of criminal jurisprudence, which it concerns all
to know.
"And to change the present penal laws in all those points in which
they contravene the following principles; which the general assembly
consider as fundamental truths, and which they have made the basis of
their legislation on this subject, to wit:
،،
Vengeance is unknown to the law.
The only object of punish-
ment is to prevent the commission of offences: it should be calculated
to operate-
"First, on the delinquent, so as by seclusion to deprive him of the
present means, and by habits of industry and temperance of any future
desire, to repeat the offence.
"Secondly, on the rest of the community, so as to deter them, by
the example, from a like contravention of the laws. No punishments.
greater than are necessary to effect these ends ought to be inflicted.
"No acts or omissions should be declared to be offences, but such
as are injurious to the state, to societies permitted by the laws, or to
individuals.
"But penal laws should not be multiplied without evident necessity;
therefore acts, although injurious to individuals or societies, should not
be made liable to public prosecution, when they may be sufficiently
repressed by private suit.
"From the imperfection of all human institutions, and the inevitable
errors of those who manage them, it sometimes happens that the inno-
cent are condemned to suffer the punishment due to the guilty. Pun-
ishments should, therefore, be of such a nature that they may be re-
mitted, and, as far as possible, compensated, in cases where the injustice
of the sentence becomes apparent.
"Where guilt is ascertained, the punishment should be speedily in-
flicted.
"Penal laws should be written in plain language, clearly and une-
quivocally expressed, that they may neither be misunderstood nor per-
verted; they should be so concise, as to be remembered with ease, and
all technical phrases or words they contain, should be clearly defined;
they should be promulgated in such a manner as to force a knowledge
of their provisions upon the people; to this end, they should not only
be published, but taught in the schools; and publicly read on stated
occasions.
There-
"The law should never command more than it can enforce.
fore, whenever from public opinion, or any other cause, a penal law
cannot be carried into execution, it should be repealed.
"The accused, in all cases, should be entitled to a public trial, con-
ducted by known rules, before impartial judges, and an unbiassed jury;
to a copy of the act of accusation against him; to the delay necessary
to prepare for his trial; to process to enforce the attendance of his own
witnesses; and to an opportunity of seeing, hearing, and examining
those who are produced against him; to the assistance of counsel for
his defence; to free communication with such counsel, if in confinement,
and to be bailed in all cases, except those particularly specified by law.
No presumption of guilt, however violent, can justify the infliction of
any punishment before conviction, or of any bodily restraint greater
than is necessary to prevent escape; and the nature and extent of this
restraint should be determined by law.
THE SYSTEM OF PENAL LAW.
53
"Perfect liberty should be secured of hearing and publishing a true
account of the proceedings of criminal courts, limited only by such
restrictions as morality and decency require; and no restraint what-
soever should be imposed on the free discussion of the official con-
duct of the judges, and other ministers of justice, in this branch of
government.
"Such a system of procedure, in criminal cases, should be estab-
lished as to be understood without long study; it should neither suffer
the guilty to escape by formal objections, nor involve the innocent in
difficulties by errors in pleading.
"For this purpose, amendments should be permitted in all cases,
where neither the accused nor the public prosecutor can be surprised.
"Those penal laws counteract their own effect, which, through a
mistaken lenity, give greater comforts to a convict than those which
he would probably have enjoyed while at liberty.
"The power of pardoning should be only exercised in cases of in-
nocence discovered, or of certain and unequivocal reformation.
"Provision should be made for preventing the execution of in-
tended offences, whenever the design to commit them is sufficiently
apparent.
"The remote means of preventing offences do not form the subject
of penal laws. The general assembly will provide them in their pro-
per place. They are the diffusion of knowledge, by the means of pub-
lic education, and the promotion of industry, and consequently of ease
and happiness, among the people.
"Religion is a source of happiness here, and the foundation of our
hopes of it hereafter; but its observance can never, without the worst
of oppression, form the subject of a penal code. All modes of belief,
and all forms of worship, are equal in the eye of the law; when they
interfere with no private or public rights, all are entitled to equal pro-
tection in their exercise.
"Whatever may be the majority of the professors of one religion
or sect in the state, it is a persecution to force any one to conform
to any ceremonies, or to observe any festival or day, appropriated to
worship by the members of a particular religious persuasion: this does
not exclude a general law, establishing civil festivals or periodical
cessations from labour for civil purposes unconnected with religious
worship, or the appointment of particular days on which citizens of all
persuasions should join, each according to his own rites, in rendering
thanks to God for any signal blessing, or imploring his assistance in any
public calamity.
"The innocent should never be made to participate in the punish-
ment inflicted on the guilty; therefore, no such effects should follow
conviction, as to prevent the heir from claiming an inheritance through,
or from the person convicted. Still less should the feelings of nature
be converted into instruments of torture, by denouncing punishment
against the children, to secure the good conduct of the parent.
"Laws intended to suppress a temporary evil should be limited to
the probable time of its duration, or carefully repealed after the reason.
for enacting them has ceased."
These different expressions of legislative opinion would seem to pre-
clude the necessity of any argument to show the defects of our present
system of penal law, or to establish the truth of the principles upon
54
INTRODUCTORY REPORT TO
which the proposed amendments are founded. But as I have taken
truth for the foundation of all my statements, utility for the sole object
of my provisions, and reason alone as the means of supporting my con-
clusions, I shall not take shelter behind any authority; but shall en-
deavour, in this report, to show that the legislative declaration of the
defective state of our penal law, is founded in fact, and that the princi-
ples they prescribed to remedy the evil were founded in wisdom and
practical truth. This will be not only useful but necessary to the pro-
per consideration of the reports, in which the attention of the legisla-
ture is called to the principal enactments in the different codes, offered
for their consideration. For, without this previous discussion, they
cannot determine whether those provisions remedy the existing evils,
or whether they are in unison with each other and with the sound
doctrines of penal jurisdiction, on which they purport to rest.
If the
proposed system cannot be supported by reasons showing that it is
both practicable and useful, it ought not to be adopted; but let no part of
it be rejected on the authority only of influential names; still less by
the affected doubts of interested, or the errors of sincere prejudice.
In this report, then, I propose to show THE NECESSITY OF A RE-
FORM, FROM A VIEW OF THE ACTUAL STATE OF OUR PENAL LAWS, and
to answer the objections that have been made to the establishment of a
written system.
:
The objects of penal law are, to define offences, to prevent their com-
mission, and to designate and direct the mode of inflicting the penalty,
when they are committed. To effect these objects, there must be rules
established by legislative authority. Those rules must be known;
and to be known, they must be promulgated. But the rule can neither
be made, nor be known, nor promulgated, unless it be clothed in words.
Are those words to be oral or written, is the first question.
A strange
one, it would seem, in our state of society, yet seriously made; seri-
ously answered in favour of traditional against written law-made and
answered by lawyers, by judges, by men whose situation gives influ-
ence, and whose opinions have weight. Such are the advocates for re-
taining the reference to that part of the English common law which
forms a part of our criminal jurisprudence. That part is not inconsid-
erable it pervades the whole mass of our legislation on this subject:
and it is necessary to understand this, that we may know how to value
the argument which asserts that our statutes, not the English common
law, defines offences and imposes the penalties. This is not the fact.
The groundwork of our penal law is the territorial statute of 1805. It
enumerates the offences and indicates the penalties; but it does not
define. Theft, burglary, murder, and other crimes, are made punish-
able. But if we want to know what theft, or murder, or any other
offence on the list is; if we wish to know what means we may use to
prevent either of these crimes; how the offender is to be arrested, how
confined, how bailed, how tried, what evidence can be admitted, what
is required for conviction; for all these, and an hundred other questions.
equally important, we are referred to the common law of England;
that is to say, what one of its greatest panegyrists styles, "the un-
written or common law," consisting of "general customs"-of par-
ticular customs-and of "certain particular laws, which by custom
are adopted and used by some particular courts.
"> The whole rest-
ing, as we see, upon custom : and when we come to inquire, how these
THE SYSTEM OF PENAL LAW.
55
""
"customs" are to be known, the same author gives the answer, "by
the judges"—who, he says, "are the depositaries of the laws, the
living oracles who must decide in all cases of doubt," &c. Here, then,
we see what is our law. It is the unwritten customs of England,'
which, from the same authority, we are told, it requires twenty years
of close study for a judge to understand; and which, without fear
of incurring the charge of presumption, I will add, no man ever did
or ever can understand-for this plain reason, that, in many instances,
it does not exist, until the case arises which calls for its application;
then it is pronounced, not by the legislative authority, but by one of
these living oracles. It is a maxim with English lawyers, that the com-
mon law is the perfection of human reason. No case, therefore, can
be supposed to be unprovided for by it, and consequently, whenever
any new case occurs, and no preceding response has been given that
will fit it, the judge must create one; and although it has never before
been spoken, or written, or applied, we must believe it, from time
immemorial, to have been a part of the common law; that is to say, as
we have just seen, the custom of England: which involves the absur-
dity of supposing that to have been immemorial usage, which we know
was never before practised or heard of.
But this is not the only difficulty or absurdity attending a reference
to the common law. These oracles, it must be remembered, are not
given like those of the sybil, in writing-but like most of those of anti-
quity, orally. The judge seldom or never writes his decision. The
words of inspiration are caught by the reporter, and he publishes them.
Here, it would be supposed, an opportunity is afforded of knowing,
with some certainty, what the law is. To the people? No! The size,
the number, the price, and the disgusting verbosity of the volumes,
forbid it. To the lawyers, then, at least ? Not even to them! The
same causes operate to prevent many of them from examining more
than an index or abridgement; but even the few who are rich enough
to buy, and have had leisure to examine, those repositories of the law,
with reference to a single point, for a general study of them would
consume the longest life, even on that single point will find themselves
sadly mistaken if they look for a certainty. Hear what Blackstone-I
take my authority only from professed admirers of this system-hear
what he says of the credit that is to be given to these reports:
"From
the reign of Henry the eighth to the present time, this task (that of re-
porting) has been executed by many private and contemporary hands;
who sometimes through haste and inaccuracy, sometimes through mis-
take and want of skill, have published very crude and imperfect, per-
haps contradictory, accounts of one and the same determination."
Admit, then, that the judge pronounces the true precept of law, we
can have no security that it is truly recorded; and a word omitted or
transposed, may alter the whole sense of the rule. But this is not all.
Let us suppose the record to be faithfully made, what is to be its effect?
Is it binding on future judges, in similar cases? In other words, is it
law? What say our oracles on this important question? Blackstone
tells us, "it is an established rule to abide by former precedents, but
with some exceptions: which are, first, when the precedent is evi-
dently contrary to reason; secondly, when it is clearly contrary to the
divine law; thirdly, which seems to be included in the first, when
it is flatly absurd or unjust." This is the doctrine of the text.
•
56
INTRODUCTORY REPORT TO
Christian, the able commentator on this justly distinguished book, says,
on the contrary, "precedents and rules must be followed even when
they are flatly absurd and unjust, if they are agreeable to ancient
principles :" and he gives an example which places the justice of this
admired system in a most striking point of view. It is a maxim of the
common law, that all statutes, whenever passed, refer to, and take
effect from, the first day of the session of parliament. Now, to exem-
plify his rule, he says, if a statute should have been passed on the last
day of the session, making an act a capital offence which before was
innocent, any one who had done that act between the first and the last
day of the cession, that is to say, perhaps six months before it was made.
an offence, would have been condemned and executed under the law.
"This," he adds, and every body must agree with him, "was flatly
absurd and unjust ;" but yet no judge could declare that it was not law;
and this absurdity and tyranny, worthy of a Nero or Caligula, con-
tinued to form a part of the "perfection of human reason" until the
year 1793(a), when one step in the road to common sense
made by enacting that the statute should not be in force before it was
made, but gave it effect, when it contained no special provision on the
subject, from the day on which it passed, without any attention to the
time in which it was known by promulgation; so that even at this day,
in England, according to the common law, a man at a distance from
the seat of government may be punished for doing an act which, in the
nature of things, he could not know to be illegal.
was
Thus the general assembly may form some idea of the nature of that
law, to which our present system of criminal proceedings refers us for
the definition of certain offences, and for the rules for preventing, try-
ing, and punishing them. We see that it consists of unwritten rules,
promulgated by the judges by precedents often incorrectly reported;
of uncertain authority when known; to be followed, according to some.
writers, however unjust or absurd; and, according to others, to be
modified by the principles of reason and the divine law, that is to say,
by the caprice, or the bigotry, or the enthusiasm of the judge. What
more uncertain rules can be referred to than human reason and the
dogmas of religion? What may appear reason to one, is folly to
another; and on no one subject does the mind of man take so wide a range
as in imagination respecting the divine will.
But if no other objection existed, that which is contained in its very
definition, would, it appears, be sufficient to ask for the substitution of
some other ;-it is unwritten. If we like its other provisions (and
very many of them are excellent) let us, at least, destroy that charac-
teristic, by reducing them to writing.
Two contradictory objections are commonly raised to this most im-
portant operation: the one, that the task is impracticable—that the
body of the common law can never be reduced to writing; the other,
that its rules are already written, and that a reference to the reporters
and commentators will give a sufficient knowledge of its provisions.
Now, of these two opinions, one only can be true; and if either be
true, it presents a state of things that no reasonable being can wish to
see continued. If all the precepts of the common law cannot be re-
duced to writing, then a part of them are not contained either in the
(a) Statute 33 Geo. III. c. 13.
THE SYSTEM OF PENAL LAW.
57
reporters or other writers, to which we are usually referred. Where
are we, then, to find this unrecorded part?—in the unexplored mind
of the judge. When is it to be promulgated?-for the first time
after the case has occurred to which it is about to be applied. And
who is to record or remember it-what is to be its effect and
authority-in our state, which of the seven independent judges is to
be considered as pronouncing the true oracle when they differ? Can
principle be more completely abandoned; can common sense and
common justice be more effectually lost sight of; can confusion be
worse confounded than by this state of things? Take the other alter-
native. The precepts and principles of the common law are already
reduced to writing. But where are they to be found? In voluminous
reports which it requires great diligence to collect, very large sums
of money to purchase, a long life to read(a), and a superhuman in-
tellect to understand and reconcile with each other when they are read!
They are to be found in commentaries on, and abridgements of, these
reports, scarcely less voluminous; in which precedents and arguments
may be found for almost every position that may be taken by sophistry,
or required for an indiscriminate defence of right and wrong; add to
this, that these sources of information are inaccessible to three-fourths
of the inhabitants of this state, being written in a language which
they cannot understand; and that of the other fourth, a very few
only have the time or the means of applying to them; and you have
a state approaching to that which has been justly designated as a
badge of the most abject slavery, one governed by unknown and un-
certain laws.
But even this, bad and absurd and oppressive as it is, this is not
the worst. The words of our statute which refer us to this rule, call
it the common law of England. Now this common law being estab-
lished in a succession of very remote ages, when manners, religion,
society and government were in a totally different state from that in
which every succeeding period found them, it necessarily happened
that positive laws were made to accommodate it to the change of circum-
stances. Some of these changes were made at so remote a time, that
the most learned antiquary would find it impossible to fix the point
in any one given subject where common law first received the aid of
positive enactment; in other words, to tell us what is common, what
is statute law. And yet we must at our peril know this; for the first
is our rule of action; with the second we have nothing to do. Com-
mon sense alone would show the necessity of this research; but being
so happy as to find it supported by authority, I gladly avail myself of
both. We have reports of cases in penal law for about three years
only; and we have them during that period, because the same court,
of which the decisions were reported, then had criminal as well as civil
jurisdiction. Property, it seems, has not only here, but in most other
countries, been considered of so much more consequence than reputa-
tion, liberty, or life, that while all decisions that in the slightest
(a) If in the days of Fortescue twenty years of hard study (viginti annorum lucubra-
tiones) were required to understand this law, then in its primitive simplicity, it is not unrea-
sonable to calculate that the necessary term must be quadrupled by the reports, commen-
taries, folio abridgements, books of entries, essays and treatises of practice, which have
accumulated in the four centuries that have since clapsed.
H
58
INTRODUCTORY REPORT TO
degree affect the former are collected, those which involve the latter
are generally consigned to oblivion; or, in particular cases, obtain an
ephemeral publicity in the gazettes. The reason of this will be here-
after discussed. It is here mentioned only to account for the very
scanty means we have of collecting authorities on these important
points. But in that short period to which I refer, a decision took
place which fully supports my position :-B. was indicted for forging
the name of another, as an indorsement, on a promissory note. The
person whose name was supposed to be forged was called as a witness;
he was objected to as being incompetent by the common law; and
many authorities were produced, showing that in England such wit-
nesses had been rejected. It was answered, that by the common law
he was a good witness; that the decisions relied on as authorities were
made since a statute passed in the reign of queen Elizabeth, which had
indirectly effected a change in the common law. Of this opinion was
the court, and the witness was sworn(a). From this it appears that
the English authorities were rejected because they were founded on
a change made in the common law by a statute; consequently that the
act of 1805 refers to the common law, unamended by statute. The
first evil resulting from this, is that to which I have alluded; the
necessity of drawing, in every contested case, the line between the sta-
tute and the common law. Supposing this difficult task to be accom-
plished, and that we have reduced the latter to its primitive simplicity
by stripping off the statutory shreds and patches by which it was dis-
figured or adorned, what have we to reward us for our pains? First,
we have the benefit of clergy(b), which assures impunity to every
one who can read, for none of our statutes have taken it away. Next,
the right of appeal in felony, and, as a consequence of appeal, the
trial by ordeal and battle; for although you have established the trial
by jury, so had the common law, and much in the same manner that
you have done, at the option of the party(c). You have the right of
sanctuary, by which every offender who can escape to a church or a
church-yard, is privileged from arrest, and may abjure the realm.
You have the right of approvement, by which any criminal who can
in a judicial combat knock out the brains of his accomplice, secures his
own pardon. You have the whole doctrine of outlawry, and other in-
cidents to criminal proceedings, which no advocate for the present
state of things either understands, or would venture to contend for if he
did; but which they cannot avoid and must learn, and must practise,
if the law is to be executed according to its plain letter. The judges,
(a) 1 Mart. Rep. 214.
(b) Should it be objected that our statute, by directing the punishment of death to be in-
flicted, abolishes the privilege of clergy; it is answered, that the same statute introduces
the common law which also directed the punishment of death, but admitted the privilege of
clergy as an exception. If, then, the rule and the exception could exist together under
the common law, why can they not under our statute?
(c) The same statute that gives us the trial by jury, at the option of the party, declares
that "the method of trial" shall be according to the said "common law;" but the said
common law allowed both the trial by battle and the trial by jury-and the former has been
demanded in our own day in England, to the great perplexity and astonishment (very prob-
ably) of the lawyers, as Spelman says was formerly the case-non sine magna juris con-
sultorum perturbatione. It has within a few years, I believe, been abolished by statute.
THE SYSTEM OF PENAL LAW.
59
therefore, must dispense with it, and do this to the degree only that
they think fit in each case. The court, not the general assembly,
must legislate, and they must legislate after the fact(a)!
In offering these reflections, it is not intended to excite prejudice
against, or pass an indiscriminate censure on the common law of Eng-
land. On the contrary, it will be seen that many of its provisions are
transferred into the system which has been prepared; and that among
them so taken from that law, are those which the most effectually se-
cure liberty, reputation and property. But the subject is discussed to
show that your predecessors were well founded in the assertion, that
our present laws being neither certain nor accessible, were defective in
at least two of the essential requisites to a good system.
The next defect in our present laws was that which the legislature
had in view, when they declared that one object of the projected code
was, to "remove doubts relative to the authority of any parts of the
penal law of the different nations by which this state, before its inde-
pendence, was governed." Were there any such doubts, and if there
were, ought they to be removed? It is an established rule of national
law, that on the transfer, or conquest of a country, the municipal laws
remain in force until they are expressly changed by the new govern-
ment(b). When the treaty of 1763, by which Louisiana was ceded by
France to Spain, was carried into effect in 1769, the latter power acted
on this principle, and solemnly promulgated its own laws(c). France,
when that power in 1803 received the actual transfer of the country
from Spain, in execution of the treaty of St Ildefonso, took only a tem-
porary and provisional possession, in order to deliver it to the United
States according to the provisions of the treaty of Paris. No material
alteration was made in the laws by this operation.
The first act of sovereignty done by the United States after the
cession, was in perfect accordance with the principles laid down. For
the law which authorized the president to take possession of the pro-
vince(d), recognizes the force and validity of the existing laws, by vest-
ing in officers to be appointed by the president, the same military, civil
and judicial powers that were exercised under the Spanish government.
The province continued under its old laws, administered by new func-
tionaries, from the time of the transfer in December 1803, until the
1st of October 1804, when the law giving us the first grade of terri-
torial government(e) took effect. This act organized the executive,
legislative and judiciary branches of a territorial government.
extended to the territory the operation of certain laws of the United
States, fixed the qualifications of jurors, and secured the right of trial
by jury, and gave the writ of habeas corpus; but so far from repealing
any of the former laws, it contains an express provision that all laws
in force in the territory at the passage of the act, and not inconsistent
with it, should continue in force until altered, modified, or repealed by
the legislature.
It
(a) Our constitution has very wisely guarded against ex post facto legislation by the
general assembly. Was it intended that the judiciary should exercise it?
(b) 1 Black. Com. 107; Cowp. Rep. 204.
(c) O'Reilly's Pro. 1769.
(d) Act of 31st October 1803.
(e) Act passed 26th March 1804, to take effect 1st October following.
60
INTRODUCTORY REPORT TO
The next change in the political organization of the territory pro-
duced none in our civil or penal laws, the act giving us the second
grade of government(a) containing the same clause for continuing them
"until altered, modified, or repealed by the legislature." And when
the trammels of territorial government were thrown off, our constitu-
tion carefully preserved the same provision(b). Thus by uninterrupted
succession, the laws by which the Spanish province of Louisiana was
governed, with the exception only of such as were inconsistent with
the several enumerated acts, were continued through all the different
changes of government, and unless since repealed, altered or modified,
are the law of the land at this day. That the penal laws formed no
exception is evident from the general words which comprehend them,
and also from some of the earliest acts of the legislative council, which
recognize them in express terms.
One of the first laws passed by the legislative council(c) declares,
that "whenever a conviction had taken place or might take place, for
any crime which by the existing laws of the territory would subject
the criminal to be sentenced to the galleys for life, that such punish-
ment might be commuted," &c. Now as no penal law whatever had
then passed since the new government was established, and a sentence
to the galleys was unknown in our jurisprudence, the "existing laws"
here mentioned must have meant the Spanish laws-and, of course, the
Spanish penal laws.
Another act provides(d), that no suit, either civil or criminal, shall
be prosecuted against any commandant for any act done subsequent to
the 30th September(e) of that year, by virtue of a previous appoint-
ment; with proviso, that it shall not protect him from prosecution for
fraud or crime under colour of office. But, at that time, there were
no other than the Spanish laws for punishing fraud or crime; there-
fore, here again the existence of those laws is acknowledged.
Again, on the 4th May 1805, an act was passed for the punish-
ment of crimes and misdemeanors, which, after specifying a number
of offences, directs, by the thirty-third section, that all the offences
therein named shall be construed and tried according to the common
law of England: and by a subsequent statute, passed in the same year,
two or three other crimes are added to the list; and it is further en-
acted, "that all other crimes, offences and misdemeanors, committed
by free persons, and not provided for by this act or the one to which this
is a supplement (act of 4th May 1805), shall be punished, and shall
be prosecuted and tried according to the common law of England."
There were, then, "other crimes, offences and misdemeanors," which
were not enumerated in the only two statutes that had then been
passed. Against what law were they offences? Clearly against the
pre-existent Spanish law. This section was repealed the next year.
(a) Act further providing for the government of the territory of Orleans, 2d March
1805.
(b) 11th section 4th art. Constitution of Louisiana.
(c) Act 2d February 1805, sect. 1. 2 Martin's Dig. 226.
(d) Act 13th December 1804, sect. 1. 2 Martin's Dig. 106.
(e) The reason why the 30th September is the date referred to is, because on the day
after, the law organizing the territorial government went into operation; and it was doubted
whether the acts done after that time by officers previously appointed, were valid.
THE SYSTEM OF PENAL LAW.
61
The repeal left things in the unsettled state they were in before the
section passed, as to the mode of procedure; but it did not change
the expression of legislative opinion as to the existence of the ancient
laws.
But this is not all. The acts I have quoted were passed under the
first grade of government, when the legislative council was appointed
by the president. Under the second the elective franchise was ex-
tended to the people; and one of the first acts of their representatives
was not only to acknowledge the same laws, but to vest in the superior
court of the territory the power of punishing crimes that were com-
mitted under the Spanish and French governments(a).
Thus, the principles of national law, the acts of congress, the laws of
territorial legislatures established by them, and the constitution of the
state, all concur in proving that the ancient civil and penal laws of the
province continued in force, except in those particulars in which they
were modified by our institutions, or repealed by our laws.
It becomes,
then, highly important to determine what parts of those ancient laws
are thus modified; which of them have been repealed; and what are
the provisions of those which still exist unaltered. If all those laws.
have been abrogated, there was no foundation for the apprehensions.
expressed by your predecessors on that subject. If the abolition is ex-
press as to some and presumptive only (and of course doubtful) as to
others, their apprehensions were well founded, and the doubts they en-
tertained ought to be removed; and if any parts of that law have nei-
ther been expressly or impliedly repealed, all such parts being still
virtually in force, ought to be examined; and if good, to be re-enacted
in a language that may be understood; or, if bad, to be repealed.
Laws may be repealed either expressly or by implication. But
there is nothing that has the appearance of an express repeal in the case
before us; unless it be the clauses contained in the several recited acts
which continue the existing laws, with the exception of such as arc in-
consistent with those acts respectively. But this, in truth, is no more
than would have been effected without that clause. For a repugnancy
between the old and the new law is an implied repeal of the former;
and this is the only criterion(b) by which we can judge that there is
such repeal; for it has been decided(c) in our courts, in conformity
with British decisions, that affirmative statutes, not incompatible in
their execution with the old law, and containing no negative or repeal-
ing words, do not abrogate the old law.
The Spanish laws, then, have not been expressly repealed. Have
they been so by implication? Certainly they have not been so alto-
gether; for there is not the least repugnancy between many of them
and our constitution or laws. What classes, then, of them have been
repealed?
First, it would seem clear that all those are abrogated by the mere
change of government(d), which relate to the prerogative of the crown,
and to the mode of making the appointment of officers. As to the du-
(a) Laws 1st territorial legislature, 3d June 1806.
(b) 1 Black. Com. 89.
(c) 1 Martin's Rep. (new series) p. 74.
(d) Vattel, lib. 3, c. 13, p. 199.
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INTRODUCTORY REPORT TO
ties of such officers, in the administration of justice and preservation of
peace, they must be performed by those appointed by the new power,
having corresponding functions, whether under the old name or with
a new designation. Thus, soon after possession was taken by the
French in 1803, Mr Laussat, the French prefect, appointed a munici-
pality to exercise the powers of the Spanish cabildo within the city,
which, on the transfer to the United States, was continued with the
same attributes until the town was incorporated by the legislative coun-
cil. Thus, too, the governor, immediately after the transfer, appointed
an alguazil mayor and commandants, who were to exercise as far as
was compatible with the new order of things, the same functions with
the officers of that name under the Spanish government.
Secondly, all those laws are abrogated which would interfere with
any right secured by the constitution or laws of the United States or of
the state; such as the liberty of the press, the right to bear arms, the
right of having counsel, of trial by jury, and others of that description.
Thirdly, I am inclined to concede that all those laws are virtually
repealed which bear upon the same offences that are prohibited by laws
passed since the cession, although there may be nothing absolutely re-
pugnant between the two penalties; there being, in my opinion, a dif-
ference between acts passed by the same government on the same
subject, (all of which are considered as one act), and the acts of a new
power legislating upon an offence which had been defined by the
jurisprudence of a former power in which latter case I am inclined to
think, that the new legislation ought to be considered as expressing its
whole will, unless there is an express or implied reference to the old
law. And finally, the law of evidence, the mode of trial, the rules of
procedure, and definition of each of the offences enumerated in the act.
of 4th May 1805, are changed, so far as relates to the offences so enu-
merated, because there is a clear repugnancy between the old law and
that statute in relation to those particular offences.
The most liberal rules of constructive repeal can go no further; yet,
discarding all that comes within these rules and all that is expressly
repealed, when we look into the former law, enough of it will remain
to make us reverence the wisdom which directed that all doubts, as to
its existence, should be removed. It would be difficult, perhaps im-
possible, to give an accurate list of the penal laws of Spain which re-
main unrepealed, or to furnish a complete analysis of their provisions.
But this very uncertainty is alone a sufficient motive to justify legisla-
tive interference. Some cases, however, may be ascertained; let us
examine them. The investigation is both curious and instructive, and
it will produce more serious results than at first sight might be sup-
posed.
The laws designating offences against sovereignty and the public
peace have been generally provided for by our statutes, or by the con-
stitution. They, therefore, come within the rules I have laid down,
and may be considered as repealed.
But before we enter further into the very cursory examination which
it is proposed to make of such offences, affecting reputation, person,
property or religion, as by the rules laid down may be supposed yet
to be in force, an important title presents itself, which has no corres-
THE SYSTEM OF PENAL LAW.
63
The
ponding division in our statute law, or that system to which it refers.
It operates on the condition or standing in society of those who come
within its purview. It is called in the Spanish law, "Enfamamiento;"
and, from its definition, is a species of dishonour attached to persons, as
well from their birth or course of life, as from having incurred the
animadversion of the magistrates, without being convicted or even ac-
cused of any offence; as from the condemnation for an infamous crime.
Political disabilities attended this state, which our institutions have, in
some instances, virtually repealed; but the note of ill fame may still
remain, and greatly influence the comfort and respectability of those to
whom it is thus attached by law, if those laws are still in force.
subject forms the sixth title of the seventh book of the Partidas. By
the second law of this title, the innocent fruit of an illegal marriage,
the son whom a father may justly or unjustly have accused in his testa-
ment, the suitor to whom the judge may, in court, have addressed an
admonition to amend his life, the advocate who may have been warned
not to bring a false accusation, the man of good credit who availed
himself of his character to ruin that of another by slanders, and the un-
faithful depositary, were all declared infamous. By the third law, not
only the wife unfaithful to a living husband, but she who forgets a
dead one in the arms of a second before her year of mourning is expired,
together with her father, if he consent to the marriage, and the too im-
patient successor of the deceased, come within the penalties of the law.
The following law confounds in the same indiscriminate class of infamy,
procurers, comedians, mountebanks, usurers, recreant knights, foresworn
promise-breakers, gamblers and buffoons. The exclusion from office
of all these ill-associated descriptions of persons is, perhaps, remedied
by our constitutional laws; but their infamy creates an incapacity to
testify, and this again is partially counteracted by the reference to the
English rules of evidence in certain enumerated crimes. But in the
offences not enumerated in the act of January 1805, beyond which,
as I shall show, the reference to the English law does not extend, and
in all civil cases, what is to take away the disability to testify?
Our civil code(a) renders those incapable whom the law deems
infamous. What law? If the answer to this important question be,
as I think it must be, the unrepealed law by which the land was go-
verned; if there should be a doubt on that subject; do those who flatter
you with dissertations on the perfection of your present laws, who cry
peace, peace, when there is no peace," do these blind guides know
the depth of the pit to which their counsels are directing you? Have
they calculated, or can they not perceive the evils attendant on this
state of things in this one particular? Let it be remembered that these
disabilities attach not upon conviction only(b), but from the fact.
us suppose, then, that a usurer should be appointed to an important
office, and it becomes the interest of an individual to make this excep-
out "
Let
a) Art. 2260. See also the act establishing the superior court, sec. 10,-"No witness, of
the age of discretion, shall be disqualified from testifying on the ground of being incompetent,
unless such witness be at the time of producing him, interested or infamous."
(b) This law confirms the opinion that a usurer is ipso facto infamous, without any con-
viction, and as the law does not distinguish whether it speaks of open or secret usury, it
must be understood of all." Greg. Lopez. note on the 4th law, and he concludes, sunt
ergo in magno periculo usurarii.
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INTRODUCTORY REPORT TO
tion to his official acts, will it be satisfactorily answered by saying that
the constitution sets no bounds to the appointing power? But, it may
be replied, the same constitution continues all laws which were in force
at the time of its adoption until they shall be repealed; but the law
declaring infamous persons incapable of exercising office has never
been repealed; therefore, if the pre-existing law excluded certain per-
sons as being infamous, there is nothing in the constitution that takes
away the disability. With respect to elective offices it is different;
where the constitution enumerates certain qualifications, it is reasonable
to suppose it expresses all that are required.
Should it be thought, however, that the Spanish law creates no dis-
qualification to office, the more important objection as applied to wit-
nesses remains. In the list of exclusions, how many are enumerated
whom it would be in the highest degree unjust and absurd to render in-
competent, were a law now to be made on the subject? The accidental
circumstance of extra-matrimonial birth-following a profession that
has been ennobled by Roscius and Garrick and Talma-or one that,
although requiring neither genius nor learning, has yet occasionally
had the sanction of great names in ancient(a) and modern times for its
practice-receiving an undeserved reprimand from a choleric judge—
solacing the grief of a widow before the time permitted by law for
drying up her tears, are certainly not acts that render one unworthy
of belief; not to speak of the numbers who would be excluded under
the exception of gambling, or the other incapacities specified in the law.
Yet one of these may be the only witness to a transaction on which
fortune may depend, or to exculpate from a charge which may effect
reputation or life.
I have enlarged more on the consequences of removing doubts as to
the existence of this law because of its general operation; for there is
scarcely a litigated question in which it may not be raised, or a person
accused, to whose interests it might not prove fatal. Let us now ex-
amine whether there are not penal laws, strictly so called, that may
not be supposed still in force, according to the principles which have
been laid down.
The seventh title of the seventh Partidas treats of the crimen falsi,
(falsedades), and (among many offences which might probably be
brought within the purview of our statute against forgery, coining and
perjury) forbids, under very heavy penalties, other acts which are not
now considered to be indictable, but which may or may not be deemed
offences while our laws are suffered to remain in their present uncer-
tain state. Among these are the following: the advocate is guilty
of this offence if he betrays the secrets of his client, or if he
designedly cite the law falsely (b). The notary, or other person is
(a) Cato, the censor, would, under this law, have been doubly disqualified as a witness;
for, if Flutarch is to be believed, he was not only a usurer but a
**** for his own slaves.
Teniendo," (in the expressive language of the Partidas' describing the offence)," sus sier-
vas en su casa faziéndolas fazer maldad de sus cuerpos por dineros!" 7 Part. tit. 6, law 4.
The list of exceptions would be greatly swelled, if the commentator's opinion is to be fol-
lowed, who includes in the class of usurers not only those who, like Shylock, deserve to be
"rated about their moneys and their usances"-but even dealers in exchange and bankers,
whose counters, he says, "are altars raised to usury and oppression.
(b) 7 Part. tit. 7, l. 1.
SYSTEM OF PENAL LAW.
65
guilty, if he deny the deposit of any mystic testament or other
writing; if he hide or deliver it to another; or if any writing be
deposited with him to be kept secret, he read or publish it(a). The
judge, if he knowingly give a judgment contrary to law; the per-
son who says mass without being ordained, and he who changes
his name to one that is more honourable, are guilty and punishable for
falsehood. The next is a falsity of rather difficult execution, and I
believe not made punishable by any of our statutes: I must give it in
the words of the Spanish lawgiver: "Trabajanse(b) a las vegadas algu-
nas mugeres que non pueden aver fijos de sus maridos, de fazer
muestra que son prenadas: e quando llegan al tiempo del parto toman
enganosamente fijos de otras mugeres e meten los consigo en los lechos,
e dizen que nacen dellas, esto dizimos que es gran falsedad; faziendo e
poniendo fijo ageno por heredero en los bienes de su marido bien assi
como si fuesse fijo delo."
There are other offences in this class which I do not enumerate, be-
cause it may be doubtful whether they do not come within some of our
statutes. The punishment is banishment, and confiscation of all the
property of the offender to his nearest ascendant or descendant; if he
have no such relation, then to the treasury. A milder punishment is
inflicted on the person who(c), being appointed to divide lands or ap-
portion other property in dispute, shall make a partial division; and
also on the arbitrator who shall designedly make a false statement of
the accounts he is appointed to settle.
Under the next head, of Homicide(d), I find the following acts made
punishable, which are not so by our statutes.
The first must be a startling one to the faculty of medicine, as one of
those I have cited must be to the gentlemen of the bar(e). It recites(ƒ),
that "men give themselves out to be more skilful in physic and
surgery than they really are(g); and that by reason of their being less
skilful than they pretend, some of their patients die by their fault."
It, therefore, enacts, that if any physician shall give an improper medi-
cine, or too much of a good one, or any surgeon, in dressing a wound,
shall break a bone, or divide an artery, and the patient in one or the
other case shall die, the offender shall be banished for five years and
forbidden to practise. In due order comes the apothecary, after the
physician; without whose orders, if he give a dose to a person who
dies in consequence of having taken it, the pharmacopolist is guilty of
homicide.
The destruction of our species in the inchoate state of existence is
not punishable by any of our statutes. It is so by those of Spain, but
(a) 7 Part. tit. 7, l. 1.
(d) Ib. tit. 8, De los Omezillos.
(b) Ib. tit. 7, 1. 3.
(c) Ib. tit. 7, 1. 8.
(e) As the presumption is that every man admitted to the bar knows the nature of the law
he quotes, it might, perhaps, be argued, that whenever he cited for law that which was not
law, he did it designedly, and of course made himself liable to the penalties of the law, "de
las falsedades,” which I have quoted. A law full of peril for the profession.
(f) 8 Part. tit. 7, 1. 6.
(g) This part of the recital would apply to more professions than one. As the law is lim-
ited, however, it behoves the advertising part of the faculty particularly to discover whether
it be in force.
I
66
INTRODUCTORY REPORT TO
they contain a provision which I have not seen in any other code—that
if death is caused by any medicines or herbs, given for the laudable
purpose of procuring an heir to the childless, it is a punishable offence.
The title of Defamation (Deshonras) (a) contains some things well
worthy of attention in the disquisition we are now making. It divides
defamation into two kinds, by word or by deed. Both are made pun-
ishable: and the definition includes every thing that is falsely said or
done to dishonour another. Defamation by deed includes writing, print-
ing, gestures, and all other acts done with the same intent, including
such as would come within the English definition of assault and battery.
One of these laws, although perhaps somewhat too strict for the free-
dom of modern manners, might, in our days, find some careful guar-
dian, jealous husband, or prudent father to put it in force, if it should
be deemed one of those that have lost its use, not its authority; and I
transcribe it that the gay gallants who are subject to its penalties, may
know the peril of their ways:
"Women," says the preamble, "whether widows, wives or maids,
who live virtuously in their houses with an honest fame, are frequently
injured, grieved and dishonoured by men who take divers means of
doing so. Some there are who are continually whispering to them,
visiting frequently at their houses, and following them in the streets to
the church or other places to which they go; others who dare not pay
those public attentions, secretly send jewels to them and to the per-
sons with whom they live, for the purposes of seduction; and others
again, strive to corrupt them by the instrumentality of infamous agents,
or by other unlawful arts. By these means the weak are led astray,
and the virtuous are suspected of evil communication with those who
pay them such attentions. Wherefore, we hold that those who con-
duct themselves in this manner do great wrong and dishonour, not
only to the women, but to their parents, their husbands and other re-
lations; and we command that whoever in any such manner offend,
shall be fined for the benefit of the woman who is dishonoured: and
moreover, the judge shall admonish him who thus follows and dis-
honours a woman, that he do so no more, and that he desist from such
folly, under the penalty of more serious penalty if he do not desist."
Among the other evils which are considered as reflecting dishonour
on whom they were practised, are the school-boy tricks of shutting
another out of his chamber and sealing the door, smoking out the neigh-
bour in the story above you, or throwing water on him who is below.
Contemptuously throwing down a book in the presence of the author,
is a dishonour under the law, as well as accusing one of theft ; but from
this last the astrologer, who is consulted to find out stolen goods, is
exempted, if he be a true astrologer, but not if he is a pretender to
that noble art.
It is difficult, in reviewing some of these laws, to preserve the gravity
required by the general subject; but it was deemed necessary to show
in what manner trivial as well as more serious acts were confounded in
the laws, to which we may, by no forced construction, be still liable.
Some of those which remain are of a graver nature.
Injuries against the peace are provided for in a separate title (de las
(a) 7 Part. tit. 9.
THE SYSTEM OF PENAL LAW.
67
Fuerças)(a). Most of them are embraced by our statutes. Some,
however, are not; and of these last only it is necessary to speak. One
of these is the forcible entry into the possession of real or personal pro-
perty; for which the penalty is the loss of the property, if the party
had any in the thing or land forcibly taken, and its value, if he had
none. The same law applies to the tenant who holds over by force;
and the borrower who, without paying the debt, shall forcibly resume
his pledge.
In the title of Theft there is one remarkable provision; by which
common gamblers are exempted (b) from punishment for theft, or any
other crime, except murder, which they may commit in a house, the
master of which receives them, knowing their character. Another
makes it a punishable offence to remove a land-mark.
The sixteenth title, of Fraud, specifies a number of acts of this
nature, all of which are punishable by our statute; and require no other
remark, than that our modern professors cannot claim the merit of
originality, several of their most approved stratagems appearing by
these laws to have been practised as early at least as the thirteenth
century.
Her
Offences against morals have not attracted the attention of our legis-
lature. We have but one statute on the subject. In the Spanish law
there are many. Adultery is made a crime. The faithless wife is
punished with stripes and confinement(c) for life in a convent.
seducer with death. The husband may forbid the person he suspects
of a design on his domestic peace to visit or speak to his wife; and any
interview after this admonition, is conclusive proof of guilt(d). The
guardian of a female orphan who marries his ward, or gives her to his
son, is guilty of this offence(e).
One of our statutes makes incest a crime, punishable by imprison-
ment for life; but as it gives no definition of the offence, a reference to
the Spanish law may be found necessary. This defines the crime to be
an illicit connexion between relatives unto the fourth degree of the can-
onical law, by consanguinity or affinity, expressly including the sisters-
in-law and brothers-in-law; and, by a subsequent disposition(f) a con-
nexion between persons who were sponsors for the same child
(compadres y commadres) incurred the same penalty. The punish-
ment was the same as that of adultery, if the offence were committed
without marriage; but, if after marriage, banishment for a nobleman,
with the addition of stripes for other offenders.
Seduction of a woman(g) of good fame, incurs forfeiture of property
and stripes. The husband who sells his own honour and the virtue of
his wife, the agent(h) in the seduction of a woman of virtue, and those
who educate children for the purpose of public prostitution, are pun-
ishable with death.
As the legislation of which I am giving a partial review was made
in the thirteenth century, it is not surprising to find that astrology,
witchcraft and incantations, love-powders and wax images, make
(a) 7 Part. tit. 13.
(d) Ib. l. 12.
(b) Ib. tit. 14, lib. 6.
(e) Ib. l. 6.
(f) Nueva Recopilacion, lib. 8, tit. 20, 1. 7.
(c) Ib. tit. 17, 1. 13.
(g) 7 Part. tit. 19.
(h) Ib. tit. 22.
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INTRODUCTORY REPORT TO
a figure in it. Divination is a capital offence, except by astronomy,
which is not only permitted, but praised as one of the seven liberal arts,
"because the conjectures and presages that are made by this art are
drawn from the natural course of the planets and stars, and are taken
from the books of Ptolemy and other sages who treat of this science."
None, however, but adepts are to meddle with this; all false pretend-
ers to it, witches, sorcerers, fortune-tellers of every description,
enchanters who raise the spirits of the dead, were capitally
punished; but with the proviso, that if the object of the exorcism or of
the black art be to cast out a devil, to preserve the crop from hail, or
from lightning, or from insects, or for any other good object, the case
is altered, and instead of punishment the operator is entitled to reward.
The subject of the few other laws of which I shall speak which were
in force here on the change of government, is Religion. There is a
general impression, so firmly established as almost to amount to con-
viction, not only that all former laws on this subject are repealed, but
that no law can constitutionally be passed subjecting any one to penal-
ties for his religious belief, or giving any preference to one religion over
another. It is to be lamented that this persuasion is unfounded. For
however we might rely on the enlightened spirit of the age to prevent
the passage of such laws, yet the interest in question is one so essential
to the happiness and peace of the people, that it is not only unfortunate
but extraordinary, that the liberty of conscience should have been over-
looked when the other great interests were secured by the constitu-
tional compact.
This omission is the more surprising, because all the several laws
and compacts regulating our political state, prior to our constitution,
have contained stipulations on this head. The treaty of Paris declares,
that until the inhabitants of the ceded territory shall be admitted into
the union, they shall be maintained in the free enjoyment of the reli-
gion they profess. The law establishing the first grade of government,
and the ordinance which gave the second, both contain restrictions on
the legislative power intended to secure religious liberty. But our
constitution, careful of every other right, descending to minutiæ which
would seem to trench on ordinary legislative power in other cases, is
silent in this. That of the United States does not supply the deficit
it only limits the powers of congress on that subject, but imposes no
restraint on those of the states.
t;
In the examination of this subject, which I have made with solicitude,
there are two arguments: one that might be used to show that the old
laws were repealed; the other that there exists a restriction on the
powers of the legislature. I state them with pleasure, and hope most
sincerely that they may always be deemed conclusive with others, al-
though I regret to say they are not so with me.
First, as to the repeal. The act of 1804, giving us the first grade
of government, contains the following provision: "The governor
and council shall have power to alter, modify or repeal the laws which
may be in force at the commencement of this act. Their legislative
powers shall also extend to all the rightful subjects of legislation; but
no law shall be valid which is inconsistent with the constitution or
(a) Lib. 8, tit. 3, 1. 5. Recop. de Castello. 7 Part. tit. 23, 1. 1, 2 and 3.
THE SYSTEM OF PENAL LAW.
69
laws of the United States, or which shall lay any person under re-
straint, burthen, or disability on account of his religious opinions, pro-
fessions or worship; in all of which he shall be free to maintain his
own, and not burthened for those of another.”
I fear that the restriction against laws upon the subject of religion,
by the true construction of this clause, operates prospectively only on
the laws that might thereafter be passed by the legislative council; if
so, it causes no repeal; for the eleventh section provides for the con-
tinuance of the laws in force in the territory, except those that are
inconsistent with it. Now if the restriction is prospective only, the
former laws are not inconsistent with it. Should this, however, be a
repeal, it is an implied one, and nothing of such importance ought to
be left to implication.
The restriction on the powers of the legislature to pass such laws
stands on very debateable ground. It is not contained in the construc-
tion. But in the ordinance giving us the second grade of government,
there are certain articles which are declared to be a compact between
the original states and the people and states in the said territory, and
which are for ever to remain unalterable, unless by common consent.
The first of those provides, that no person, demeaning himself in a
peaceable and orderly manner(a), shall be molested on account of his
mode of worship or religious sentiments, in the said territory.
By the act authorizing the inhabitants to form a state government,
it is provided, among other things, that the constitution to be formed
shall contain the fundamental principles of civil and religious liberty;
and the law admitting the state into the union, contains the proviso,
that all the conditions contained in the third section of the last recited
act, shall be considered as fundamental conditions and terms, on which
the state is admitted into the union. Whether a law passed in con-
travention of the article of the ordinance or of the proviso in the two
laws regulating our admission into the union, would on that account
be declared void, when the constitution contains no restriction of power
on this subject, is a question requiring an argument that does not come
within the scope, and could not be brought within the compass of this
report. It is stated to show, that even on this vital subject, the laws
respecting religion, there were grounds for the doubts expressed, as
one of the motives for directing the work which I have now the ho-
nour to present.
The laws on this subject are extremely oppressive and highly penal.
Heresy, Judaism and blasphemy, were their principal objects.
The religion of the Jews was tolerated; but an attempt to make
proselytes, leaving their houses on holy Friday, buying a Christian
slave, and being guilty of the absurd charge of" crucifying young chil-
dren" at their festivals, were punishable with death; as was the con-
nexion of a Jew with a Christian woman; for, says the lawgiver(b), “ if
Christians merit death who commit adultery with married women,
much more do Jews deserve that punishment for connecting themselves.
(a) In bad times this phraseology might give rise to oppression: "he is not to be molested
in his religion, if he behave in an orderly manner." Do not his religious rights then depend
on the order of his behaviour? What would an inquisitor or an inquisitorial judge call
orderly?
(b) 7 Part. tit. 24, 1. 9. Recop. de Cast. § 2, 3 and 4.
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INTRODUCTORY REPORT TO
with Christian women, who are all spiritually the wives of our Lord
Jesus Christ, on account of the baptism they have received in his name."
In one instance the Jews had a protection allowed them which the
English laws do not give: they could not be arrested on the day of
their Sabbath.
Heresy is defined to be a departure from the Catholic faith as es-
tablished by the church of Rome, or disbelief in a future state(a). The
punishment is death at the stake.
Blasphemy is any thing that is said or done in contempt of God, the
Virgin Mary or the saints. The punishment for which, if by words,
is forfeiture, according to the rank of the offender and the repetition of
the offence; if by deed, with the loss of the hands.
Some of these laws may have been repealed by later Spanish laws;
others, doubtless, were added prior to the time that Louisiana was ceded,
which have not been brought within our reach. Therefore, the enu-
meration may not be perfectly correct. This will be of less importance
if the object of the detail is kept in view. This was to give a general
view of such penal laws only as might not be supposed to be repealed
by our constitution or laws; and it must also be remembered that the
provisions, exceptions and other details contained in those laws, which
would have been indispensable if they had been quoted as rules of ac-
tion, were not thought so when their existence and general operation
only was the subject of inquiry; yet I have been guilty of no voluntary
omission, and have followed the text always in preference to the com-
mentary of the law.
Most willingly would I here close this catalogue; but the present
state of our jurisprudence renders it a duty with which I reluctantly
comply, to add to the list a word at which humanity shudders, and to ask,
whether we are as sure as we ought to be that torture forms no part of
our criminal law? It found, with all its horrors, a prominent place.
among the laws of Spain; and to determine in what degree they are
modified or repealed, the hateful task must be performed of adverting
to their provisions.
This diabolical power was vested in the judge, with no other limita-
tion as to the degree in which it was to be inflicted, than that it should
not extend to loss of life and limb. Within these limits he was not
only empowered but instructed so to direct the operation as to create the
most excruciating physical and moral anguish. These monsters studied
the human frame, to discover in what part it would feel the acutest pain;
they marked the working of the mind, to know where the deepest
wounds of the spirit could be inflicted: and they insert the result of
their cold-blooded calculation in their laws with minutiae that sickens
the heart. Among several delinquents, the judge is directed to select
for this operation of cruelty and horror, the youngest, the most deli-
cately framed(b), the most tenderly educated, and—is this an earthly
or a hellish code that I am reviewing?-when there is a father and
a son, to rack the limbs of the child in the presence of the parent-" be-
cause," says the worthy commentator on this text, a father(c) can
better bear his own torments than those of his child;" and in the same
(a) Part. tit. 26, l. 1 and 2. Rec. § 3, 1.
(c) Greg. Lop. note on 1. 5. 7 Part. tit. 30.
66
(b) Ib. tit. 30, 1. 5. Gom. Var. Res. c. 13.
THE SYSTEM OF PENAL LAW.
71
spirit, women were made the first victims, until some of these fiends
discovered that they bore pain with more fortitude than men. The
objects upon whom the application of this engine for beating out the
truth, as it is called in their laws (èscodrinar la verdad), was authorized,
were, first the accused (a), who was vehemently suspected, or against
whom there was no certain proofs, for the purpose of forcing a con-
fession; secondly, a convict to make him discover his accomplice;
thirdly, a witness who prevaricates. It would not have been necessary
to enter into the details of these laws, if their provisions had been known
or attended to by those who framed our constitution. They seem to
have entertained the common error that torture was only authorized
in order to force a confession from the accused; and they, therefore,
thought it would be completely abrogated by the clause which provides,
"that the accused shall not be obliged to give evidence against himself,"
-leaving its application to force testimony against others entirely un-
affected by the provision, at least so far as relates to the offences not
enumerated in the act of 4th May 1805. I would not be understood
as expressing a belief that this mode of obtaining testimony will ever
be resorted to. It is too repugnant to our feelings-too inconsistent
with our morals and earliest impressions. Non nostri generis nec san-
guinis est. It is not of our country, and belongs not to our generation
or race. It is of foreign growth, and cannot be engrafted on our juris-
prudence. Yet the word must not stain its pages. It is yours to purge
them of this disgrace; to take away not only the possibility of its being
inflicted, but prevent its very sound from offending the ears, or its idea pol-
luting the minds of freemen: or, if it must be remembered, let it be only
as one in the list of evils from which our connexion with a confederacy
of free states has relieved us. Yes, this task must be performed: for
notwithstanding the confidence we all feel that the intelligence and
humanity of our fellow citizens would reject these horrors, yet we must
not tempt folly or wickedness by placing such weapons within its reach.
All the inhuman and ill-assorted and unknown laws must be positively,
unequivocally, publicly abrogated. Reason requires it; prudence points
out the danger of delay; and experience has added her warning and con-
vincing voice to teach us how little reliance we can place on our fancied
security (b). For, in closing this subject, let me answer those who
(a) 7 Part tit. 30, 1. S. Ant. Gom. ubi supra.
(b) I should have thought the danger almost imaginary on this point, if I had not found
the philosopher Voltaire, his disciple Diderot and M. Hautefort, all three commentators on
Beccaria, enthusiastic admirers of his humane doctrines, and particularly of his arguments for
the abolition of torture against the accused-if I had not found them more or less expressly
agreeing, that it ought to be retained as the means of procuring from a convict the disclo-
sure of his accomplices.
"Reserve (says Voltaire) at least this cruelty for acknowledged villains, who have assas-
sinated the head of a family, or the father of his country, to find out their accomplices," &c.
-Comm. Beccaria, c. 13.
Hautefort says,
"It (the torture) can only be employed against a criminal convicted in
the most legal manner, in order to discover his accomplices." But he adds, "would it not
be essential to examine whether the search after accomplices is not too rigorous."- Obser-
vations sur le Livre des Delites et des Peines.
Diderot is explicit. He says, "this additional torment is necessary to draw from him
72
INTRODUCTORY REPORT TO
still tell you there is no danger; who can see no mischief until it is felt;
who deride as visionaries and false prophets of evil, all those who by a
prudent foresight strive to avert them. Let me tell those incredulous
apostles, who will not believe that a stroke has been inflicted until they
can lay a finger on the wound, or that what has been dead may be re-
vived, until with their eyes they behold the resurrection-let me tell
them, that such revival of dead and obsolete laws requires no miraculous
power to effect; that a weak, an ignorant or a conceited magistrate is
sufficient for the operation; that it has actually happened, and that by
such agency one of the worst, the most inhuman and arbitrary of all
those ancient laws has been executed under our free and enlightened
government. In a remote parish of the then territory, a human being
was, for I know not what crime, by the sentence of a magistrate con-
demned to be burned alive; that the sentence was executed in his pre-
sence, and that there was no law passed by the government of the
territory authorizing such punishment. It is true, the victim was a
slave. It is true, that a law of Spain directs that the slave shall be
punished with more cruelty (a) than the freeman, and the commoner
than the nobleman. But the only law(b) I have been able to discover
for using this inhuman punishment makes no distinction. It permits the
judge in every capital case to designate the punishment. It may at
his discretion, be either "decapitation with the sword (for the statute
with great humanity forbids the saw or the reaping hook), or it may be
by burning, or hanging, or casting to be devoured by wild beasts."
Our judge, in the exercise of the discretion thus humanely given to him,
chose the fire and the faggot, and afterwards showed where the writhings
of agony had forced the chain of his victim into the bark of the tree that
served for a stake. No name is mentioned, for death has removed the
magistrate from the reach of justification or censure; but having strong
evidence of the fact, and its bearing being so immediate on the subject
of the report, I should have been culpable in suppressing, however re-
luctant I might be to mention it.
Let me now ask those who have followed me through this rapid de-
tail, whether wisdom, prudence and even necessity did not dictate to
the legislature the duty of "removing doubts relative to the authority
of any parts of the penal law of the different nations by which this state,
before its independence, was governed ;" and of selecting out of them
“such statutes as were proper to be retained in the penal code ?" In
the mass to which I have referred, there are some provisions that
we should find an advantage in retaining; but much so inconsistent
(the convict) not only the discovery of his accomplices and the means of arresting them, but
an indication of the proofs necessary for their conviction."-Notes on Beccaria, c. 12.
When the apostles of reform and preachers of humanity use such language as this in fa-
vour of the application of the torture in one of the cases in which, if my argument be correct,
it still may be considered as part of our law, is it a very absurd fear which urges its positive.
abolition ?
(a) 7 Part. tit. 31, I. S. "Ca mas crumente deven escarmentar al siervo que al libre y
al ome vil que al fidalgo."
(b) 7 Part. tit. 31, l. 6. I must in candour state that I am ignorant under pretext of what
particular law this execution took place; but as the one I have cited does authorize it, and
there was no territorial statute that could justify it, I thought it fairer to suppose that he
acted with than without authority.
THE SYSTEM OF PENAL LAW.
73
with our ideas of justice, so well calculated to become the instruments
of oppression, that all doubts of their existence as a part of our law,
ought to be put aside. Where there is doubt, there is danger; and my
object in urging that none of the received rules of repeal apply to those
laws, has been only to show that doubts may be raised, that in the
hands of a more able arguer those doubts may be converted into con-
viction of their existence, and to the enforcement of such as might suit
the party-feeling or other bad passions of the moment. Can the confu-
sion of such a decision be well imagined? We are now blessed with
peace, with exemption from any other party feeling than those neces-
sary for a due vigilance over our servants. We have magistrates in-
capable of wresting the law to the purposes of interest, ambition or
vengeance. Now is the time to act. If those laws are in force, let
them be repealed; if they are not, dissipate all doubts. Do not suffer
them, in either case, to remain a snare to the unwary, and instruments
in the hands of a corrupt or ignorant judge; for no oppression is so
detestable as that which is exercised under the guise of justice; it is the
only tyranny which can be feared under our government. The spirit
of the people would soon rise against any open breach of their rights.
But their respect for the laws, their reverence for those who administer
them, make them slow to perceive the oppression that is clothed in the
forms of law; and when it is discovered, it must remain unpunished; for
the excuse of error in opinion is always ready to cover every fault in
this branch of our government. Place beyond its reach, therefore, all
those instruments which would be equally injurious, whether brand-
ished by folly, or directed by malignant design; leave no doubt as to
the existence of those laws which you desire to have enforced; repeal
all those which it is inexpedient, unjust, or impossible to execute. Be
assured, legislators, of this truth, that there can be no law of which the
existence is a matter of indifference. It must remain in your code for
good or for evil: for good, if it be a wise law and carried into effect;
for evil, whether it be good or bad, if it remain unexecuted. In the
one case the people are taught the dangerous lesson that the best pre-
cepts may be disregarded with impunity; in the other they are sub-
jected, when the danger is least apprehended, to the unjust operation
of a forgotten law,
Indeed, there is scarcely a greater reproach to the jurisprudence of
a nation than the existence of obsolete laws(a); that is to say, laws
that are none-laws that are no rule to guide our actions, because they
are unknown to, or forgotten by those upon whom they are to ope-
rate; but which yet may be used to punish them for their contraven-
tion, because they are known and remembered by those who are em-
powered to enforce them, whenever the malice of a prosecutor, or the
ignorance, corruption, or party-feeling of a judge may induce him to
(a) Hear what the wise Bacon says on this subject: "Dicit propheta pluet super eos laqueos;
non sunt autem pejores laquei quam laquei legum, præsertim pænalium; si numero immensæ et
temporis decursu inutiles non lucernam pedibus præbeant, sed retia potius objiciant." Apho-
rismus 53.-The prophet saith, it shall rain snares upon them; but of all snares, the snares
of the law are the worst, especially of the penal law; when they have become useless, ei-
ther by the accumulation of their number or by the lapse of time, they are not a light to
guide our steps, but a net to entangle them.
K
74
INTRODUCTORY REPORT TO
draw the rusty sword from its scabbard. To apply this to our case, as
has been seen,
"We have strict statutes and most biting laws,
Which (a) for these nineteen years we have let sleep;"
statutes of such number and variety, that there is not a state or condi-
tion in life that cannot be affected by them; not a man in the commu-
nity that has not made himself obnoxious to the penalties of some of
them. Let the long but imperfect list I have given be perused, and
where is he who can say that some of his actions may not be brought
within the purview of one or more of the loose and entangling defini-
tions contained in those laws. But even if they should never be made
the instruments of oppression, if they should remain wholly unexe-
cuted, the effect is scarcely less to be deprecated, and is thus well ex-
pressed by the high authority whose aphorism I have just referred to
in a note: "Here is a further inconvenience of obsolete penal laws;
for this brings on a gangrene, neglect and habit of disobedience upon
other wholesome laws, that are fit to be continued in practice and exe-
cution, so that our laws endure the torment of Mezentius, the living
die in the arms of the dead !"
It is your province, by correcting the evil, to complete what your
predecessors began. This might be effected by a general repeal; but
that would be a small part of the duty which your constituents-which
the world requires at your hands. Graviora manent.
The list of defects in our present system is but begun. They must.
be faithfully exhibited to your view. The allegation so frequently
repeated, that we want no reform, has, it cannot be concealed, had its
effect on the community, on its representatives. It shall be completely
refuted. I speak with confidence because I know my ground. The
task is not a pleasant one, but it must be performed. Let us proceed
with the detail.
The common law, to which we are referred for definition, procedure,
and evidence, has, I may believe, been demonstrated to be rather, to
say the least of it, an uncertain guide. But what shall be said of the
legislation that in many cases gives us none(b)? Yet such is ours.
This point deserves to be the more seriously considered, because I be-
lieve it has not hitherto attracted attention.
(a) The slumber in which our Spanish statutes has been plunged, is somewhat longer than
Shakspeare has feigned those of Vienna to have been, yet it may happen, that some "pre-
cise lord Angelo" may be found,
"To awaken all the enrolled penalties
Which have like unscoured armour hung to the wall,
And none of them been worn; and for a name
May put the drowsy and neglected act
Freshly in execution."
Let our modern Claudios beware, for among the rusty Spanish statutes is one imposing the
penalty of death for the very offence which put the gay deceiver of the play in peril of his head.
(b) Bacon, a name which I love to quote, in inquiring into the causes of the law's uncer-
tainty, places this first on the list-" duplex legum incertitudo; altera ubi lex nulla præ-
scribitur, altera ubi ambigua et obscura." Unfortunately we have both.
THE SYSTEM OF PENAL LAW.
75
By the 33d section of the act so frequently referred to (4th May(a)
1805) it is enacted, "that all the crimes, offences and misdemeanors
herein before named, shall be taken, intended and construed according
to, and in conformity with, the common law of England; and that the
forms of indictment (divested, however, of unnecessary prolixity), the
method of trial, the rules of evidence, and all other proceedings what-
ever in the prosecution of the said crimes, offences and misdemeanors,
changing what ought to be changed, shall be (except as by this act is
otherwise provided for) according to the said common law."
""
Now although it seems sufficiently plain that the common law is re-
ferred to only as relates to the crimes and offences enumerated in that
act, the argument is made stronger by the third section of the act of 3d
July 1805, being the second law on the subject of offences that was
passed by the territorial legislature. It declares, "that all other
crimes, offences and misdemeanors not provided for by that or the
former act, should be punished, prosecuted and tried according to the
common law of England.' This guarded against the evil; but the
very next year the legislature repealed it, thereby adding an express
to the former implied declaration of their will, that the common law of
England should be applied to those offences only that were enumerated
in the act of 1805. Yet that act enumerates only certain offences, and
very many more have been created by subsequent statutes, as may be
seen by a reference to the schedule annexed to this report. But in no
one of these last is there any reference to the common or any other
law, for the definition of the crime, the mode of procedure, or the rules
of evidence! What then did the legislature intend should be the rule
to govern the courts? Did they intend the common law? Certainly,
as it is a foreign code, they shall not be presumed to have introduced
it without some indication of that intent. The legal conclusion is, that
the existing laws were intended to govern in all cases where they are
not abrogated or altered. In that case we should have to consult Span-
ish authorities for the definition of offences and the rules of evidence,
and for the mode of proceeding, so far as was compatible with the other
provisions of the constitution and statutes of the state. Yet this has
great, perhaps insurmountable difficulties. To avoid these difficulties.
recourse has been had, under the plea of necessity, to the assumption
of legislative power by the courts. They have, without scruple and
without being questioned, applied the 33d section of the act of 1805 to
all the subsequent penal laws; they have restored the third section of this
second act which the legislature repealed, and have defined and tried
all offences indiscriminately according to the common law. It will not,
it is presumed, be denied, that the introduction of this section into the
act was the exercise of a legislative power, necessary in order to the
application of the common law to the offences enumerated in that sta-
tute. If so, it follows that nothing but the exercise of a similar power
could legally apply it to offences not enumerated in that act. But it has
been so applied to the other offences by the judiciary; therefore, the
judiciary have exercised a legislative power. But the constitution has
expressly forbidden, both by affirmative precept and positive prohibi-
(a) This act is quoted in Martin's Digest, sometimes under the date of 24th January 1805,
sometimes the 4th May 1805. I believe the latter is the true date, but have no means
bere of ascertaining it correctly.
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INTRODUCTORY REPORT TO
tion, in the most precise terms that the language could afford, any
such exercise of power.
"The powers of the government of the state of Lousiana shall be
divided into three distinct departments, and each of them shall be con-
fided to a separate body of magistracy, viz., those which are legisla-
tive to one, those which are executive to another, and those which are
judiciary to another. No person being one of these departments shall
exercise any power properly belonging to either of the others, except
in the instances hereinafter expressly directed or permitted.
""
I do not ascribe this exercise of powers to any improper motive. It
may, without any such imputation, be accounted for by the confused
state of our criminal laws, which forced the courts either to suffer
crimes to go unpunished, or to assume powers not properly belonging
to them, but which the proper department would not exercise itself,
and took no pains to prevent the exercise by another.
It is thus that the assumption of unconstitutional powers is first exer-
cised, then excused, and in the end insisted on as a right; and it is
as essential to good government that each department should exercise
its proper functions as that it should avoid assuming those of another
for power is too precious to be lost. Whatever is abandoned by one
is eagerly seized by the other; and careless legislation will inevitably
produce executive and judicial encroachment.
;
In the case under discussion there is less cause to inculpate the
courts of law, because the question has not, it is believed, been hitherto
raised for decision; but whenever it shall be, its importance will be
discovered, and the inevitable result be either a solemn decision,
which cannot be supposed, that courts have legislative powers, or a
confession of that which we are now endeavouring to establish, that a
written code is necessary for the execution of the penal law. To prove
this, let us suppose that on the trial of a capital offence created by an
act passed since the year 1805, a witness should be offered who is com-
petent according to the common law of England, but inadmissible under
the laws which I have rapidly reviewed, either as a usurer, a comedian,
a person of illegitimate birth, or as enemy of the accused (a), or a
priest(b), a minor(c) under sixteen years of age, a relation in the
ascending(d) or descending line, or a collateral within the fourth degree,
or for any of the numerous other exceptions that exclude witnesses ac-
cording to the Spanish law; by what process of reasoning will any
court come to the conclusion that they have the right to adopt the com-
mon law as their guide in this question? What species of testimony
is to be admitted? What makes a competent witness? are questions.
which the laws of the country must decide by general rules. Whether
any particular testimony offered, any individual witness produced,
comes within these rules, are questions for the judge to decide.
On the change of government there were laws which governed the
admission of witnesses. The new government changed these laws, as
related to certain enumerated crimes. It was silent as to the others.
What was the consequence as to those others? Either, as I believe,
that the old law remained in force; or, if that should not be the case,
that they remained without any law to govern them. But in either
(b) Ib. No. 20.
(a) Ant. Gom. Var. Res. 3d vol. c. 12, No. 15.
(c) Ib. No. 14.
(d) Ib. No. 16.
THE SYSTEM OF PENAL LAW.
77
case the common law of England would not be applied to them with-
out a legislative act. The selection of that law for the offences enumer-
ated in the act of 1805 was a legislative act. The application of it to
others must be one of the same character; for, as we have seen, it is
strictly, emphatically confined by that law to the offences therein enu-
merated, and for subsequent offences the judiciary have the same right
to select the laws of Hindostan as they have to adopt those of England.
But if they have not this right, if they cannot exercise it, is there a
doubt that the legislature ought and must do it, because there is either
no rule, or the one that exists under the laws of Spain is so monstrous,
so perfectly inapplicable to our situation that it equally calls for reno-
vation? But what remedy can the legislature apply? Is it by the
summary process adopted in 1805 of selecting a foreign code? During
the territorial government this could have been done; but now the
only remedy is a code that shall define the crime, direct the procedure
and give the rules of evidence. Attention is particularly necessary to
this argument, because, unless the reporter errs, it is conclusive as to
the necessity of the work in question.
The framers of our constitution had been witnesses to, and had par-
ticipated in the anxiety and dismay that pervaded the whole commu-
nity when an attempt was made, in the earliest stage of our political
connexion with the United States, to take advantage of an ambiguous.
expression in the ordinance given for our government, in order to in-
troduce a new system of jurisprudence(a), totally unknown to, and the
knowledge of which was unattainable by the people of the territory.
They dreaded the common law of England. They feared another at-
tempt to introduce it.
Their escape was too recent not to make them
apprehend that in future times the struggle might be renewed. They
wisely thought that to be free, a people must know the laws by
which they were governed. They were aware of the difficulty, nay, the
utter impossibility of this knowledge being acquired when the law was
unwritten, or if written, dispersed through hundreds of volumes in a
language unknown to three-fourths of their constituents. They saw the
danger of permitting a particular class of men to become the sole de-
positaries of this knowledge and the sole interpreters of the laws; and
they did every thing that prudent foresight could do to prevent these
evils, by inserting in the constitution the following clause: "The
existing laws in this territory, when this constitution goes into ef
fect, shall continue to be in force until altered or abolished by the
legislature; provided, however, that the legislature shall never adopt
any system or code of laws by a general reference to the said system or
code, but in all cases shall specify the several provisions of the laws
it may enact."
By this important amendment, for which the gentleman who intro-
duced it deserves the thanks of his country(b), and by the section which
follows it requiring the judges in definitive sentences to refer to the par-
(a) To have had a share in averting this danger gives the reporter a satisfaction that can
be equalled only by his being instrumental in the establishment of a system that may pro-
mote the honour and happiness of the state that has honoured him with the preparatory duty
he is now performing.
(b) Mr Bernard Marigny is the member of the convention to whom the state is indebted
for this essential service.
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INTRODUCTORY REPORT TO
ticular law by which they were governed, an effectual bar was placed
to the legislative introduction of unwritten law; and no act can now
constitutionally be passed, extending the 33d section of the act of 1805,
which introduces the common law to any offences created by law since
that period. If they wish to provide rules on the subjects embraced
by that section they must enact them specifically, that is to say, call it
by what name it may be convenient to use, they must, in effect, have
a code or a law defining crimes, a code of procedure and a code of evi-
dence. This wise provision, while it prevented a repetition of the
careless legislation which introduced the common law of England
without considering or even knowing its provisions, did not prevent
the adoption of all those parts of it which have justly commanded the
admiration of the world; but it imposed the necessity of distinguishing,
of selecting, of knowing them and of reducing them to writing; so that
the people might not only be governed by them, but might understand
and approve them.
The position, then, with which I set out on this head is fully esta-
blished: that there is no alternative but this-the legislature must make
a code, or they must suffer the courts to legislate on subjects of the most
importance to life, reputation, personal liberty and civil and political
rights. It will be no escape from this dilemma to say that the legis-
lature, having defined an offence and having designated the punishment,
an implied power is given to the court to do all else that is necessary.
There are three answers to this argument, all of them conclusive.
First, the establishment of rules of evidence is a legislative act; it
cannot, therefore, be expressly transferred, much less can it be by im-
plication. Secondly, if a legislative power could be transferred, this
power could not, because the power of the general assembly itself is
restricted in this particular by the clause I have just quoted. Thirdly,
if this power could be transferable from the general assembly, they
could not vest it in the judiciary, nor could this latter department exe-
cute it, by reason of the express inhibition to which I have referred.
As little will it avail to say that this is not the adoption of a code or
system of laws which was forbidden by the constitution, but only the
adaptation of a part of such system to a particular part of our law. The
evil intended to be guarded against was that of the introduction of laws
by a general reference, without seeing and considering their particular
import; and most especially (I appeal to all the members of that con-
vention) against the introduction of the common law of England, or
unwritten law. But of what avail would this provision have been,
if, by a general reference to its particular parts the whole might have
been introduced? The argument then would be this:-it is true we
cannot introduce the common law by a general reference to the whole;
but by taking its parts separately we may effect the same thing, and by
the same forbidden means of a general reference to each of them. Thus,
without repeating or indeed knowing its details, we will by one act
say, the common law rules of evidence shall be introduced; by another,
we will adopt its laws of descents; by a third, its whole criminal law;
and so of the rest.
Leaving the consideration of these general defects in our criminal
law, we must examine its particular provisions; and here, too, we shall
find so many omissions to supply, so many faults to correct, as must
show the necessity of a thorough reform if we wish to attain a system
THE SYSTEM OF PENAL LAW.
79
that will do us honour, or if we aspire only to the humbler merit of
avoiding the grossest faults in legislation. A very brief recurrence to
our statute-book will show that there is abundant reason to justify the
declaration of your predecessors, that our present system "is defective
in many or all of the points that are of primary importance in every
well regulated state." To begin with one that must strike the most
superficial observer. What else could be said of the system which
provides no means for inflicting the only punishments its laws denounce
against the most numerous and most injurious classes of crimes? Four-
fifths of the offences enumerated in the statutes are punishable by im-
prisonment at hard labour; yet, for more than twenty years no means
have been provided for employing those who may commit such offences.
Two evils result from this neglect. The judges are forced to pro-
nounce a sentence which they know cannot be carried into effect; and
the offender suffers a punishment not denounced by law against his
offence; not to speak of another consequence, which will be enlarged
upon in the introductory report to the Code of Prison Discipline, the
incalculable evil of indiscriminate confinement in idleness.
{
What shall we say of this system? Shall we say that it is so perfect
as to need no amendment-that he was rash and presumptuous who
thought he could propose a better-that the legislature which authorized
the experiment formed vain theories? Or, shall we deny to the in-
congruous mass of written and unwritten law the very name of a sys-
tem; and say, that the humblest abilities might, without vanity, aspire
to propose something that would replace it to advantage; and that the
attempt to amend it did honour to your predecessors? These conclu-
sions will appear the more irresistible the further we advance in the
examination of our statute law.
From the year 1805 to 1819 we have fourteen statutes, providing
for the punishment of more than seventy different acts, or for the same
act under different modifications of circumstance and intent; without
including the prohibitions of the same act in relation to several objects
specified in the statute-as for example, the different instruments, the
falsely making of which is declared forgery; besides pecuniary and
other forfeitures for infractions of particular regulations interspersed in
many other statutes. This period comprises only fourteen years. Yet
the want of some fixed principles of legislation, the utter disregard of
system and method, and an astonishing inattention to preceding enact-
ments, as well as to a due proportion of punishments to crimes, have
led us in that short space of time into incongruities, the development
of which must excite the wonder of those who have believed the re-
peated assertions so confidently made, that our penal laws want no
amendment.
When the provisions of the projected codes are compared with the
existing laws, their discrepancies will be more particularly pointed out.
Here it will be sufficient, generally, to refer to a few instances of this
species of legislation.
When we consider the different circumstances attached to the com-
mission of homicide, which may characterize it as an innocent or even
a meritorious act, when done in defence of ourselves or in the service
of our country; as excusable when the effect of accident; slightly pun-
ishable when produced by passion arising from adequate cause; or
meriting the highest penalty when coming under the denomination of
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INTRODUCTORY REPORT TO
murder: we must see the necessity of designating with the greatest pre
cision the different circumstances and intentions which give to the same
act the character of a virtue, an excusable fault, a slight offence, or a
crime of the blackest dye; which entitle the accused to reward and es-
teem, to pity and forgiveness, or consign him to death. Surely, if there
is any subject on which the law ought to speak in language intelligible
to the meanest capacity, in which it ought to be accessible to all, in
which there should be no doubtful phrase, no contradictory enactments,
it is this. Let us see how far our boasted legislation complies with
these requisites.
At the time
The first act (4th May 1805) declares, that if any person shall com-
mit the crime of wilful murder he shall suffer death; and that if he
commit manslaughter, he shall be fined, and may be imprisoned at
hard labour or otherwise. The fine may be one cent or five hundred
dollars, and the imprisonment one hour or twelve years. Here are
only two kinds of homicide provided for; and, if it be true that the
Spanish laws cease to operate, this law informs the citizens that every
other killing may be perpetrated without incurring any penalty.
It is
highly important then to know what these terms mean.
this law passed, four-fifths of the population could understand no En-
glish; and a very few only of the other fifth could explain the meaning
of the technical terms murder and manslaughter. The only guide,
therefore, for a large majority of the people would be the French ver-
sion of the law. There they find that the one is "homicide premed-
itée," and the other "homicide non premeditée," according to which
the justifiable homicide of a public enemy would be punished with
death, and the accidental shooting of a friend might incur imprisonment
at hard labour for twelve years. Reason would revolt at this; and it
would be scarcely a sufficient answer for the legislator who might have
been reproached with this slovenly manner of performing his duty to
say, "read on; the 33d section of the statute takes away all cause of
complaint. You are there referred to a sure guide in all your difficul-
ties.
If you wish to understand these or any other terms in the law,
you have only to consult the common law of England."
"But you have undertaken to give us the explanation. You have
called murder premeditated and manslaughter unpremeditated hom-
icide. Did you intend these as definitions? If you did, they lead to
the absurd consequences that have been stated. If you did not, your
language deceives us; you should have added the other distinctive
characteristics of the several offences. In either case your legislation
is miserably defective. Besides, is it not a mockery to refer me to the
common law of England? Where am I to find it? Who is to inter-
pret it for me? If I should apply to a lawyer for the book that con-
tained it he would smile at my ignorance, and pointing to about five
hundred volumes on his shelves, would tell me those contained a small
part of it; that the rest was either unwritten or might be found in books
that were in London or New York, or that it was shut up in the breasts
of the judges at Westminster-hall. If I should ask him to examine his
books and give me the information which the law itself ought to have
afforded, he would hint that he lived by his profession, and that the
knoweldge he had acquired by hard study for many years could not
be gratuitously imparted. Your law therefore, I repeat, is absurd in its
THE SYSTEM OF PENAL LAW
81
1
consequences, if taken literally, and mocks us by a reference to an in-
accessible source for an explanation of its obscurities."
What could a candid man say to this reply? Every such man
must acknowledge the justice of the reproach, and confess that such
laws are a disgrace to the jurisprudence of his country. But this is
not all. How shall we characterize the legislation that confounds,
under the same denomination of crime(a), intentional and negligent
homicide; and permits the judge to punish the same offence by the fine
of a cent, or imprisonment at hard labour during a term equivalent to
the usual duration of human life; while, for premeditated homicide, un-
der any circumstances, according to the explanation given of it to a
majority of the inhabitants, the uniform punishment is death.
A few months after the passage of this law, the same legislature at-
tempted to amend it, by enacting that all murder by persons lying
in wait, or any other kind of deliberate and premeditated killing," or
which shall be committed in the perpetration of certain enumerated
crimes, "shall be deemed murder in the first degree, and all other
kinds of murder shall be deemed murder in the second degree." Here
all murder by premeditated killing forms one degree; but premedita-
tion is the only characteristic given by the former statute, and an essen-
tial one given by the common law, in the definition of all kinds of
murder. What, therefore, is left for murder in the second degree?
The fifth section of this act is a curious specimen of legislative in-
difference. It provides that a prior offender shall be punished as is
directed by this act, or by the act to which it is a supplement, that is,
by imprisonment or by death; but whether the alternative is given to
the choice of the culprit, to the direction of the court, or to chance, the
law mantains a most dignified silence. This statute has been repealed,
but it was not until the year 1818 that its absurdity forced itself upon
the notice of the legislature. A similar instance may be found in a law
passed the 25th March 1813, against carrying concealed weapons.
By the second section of which it was enacted, that if any one should
"stab or shoot, or in any way disable another by such concealed weapons,
or should take the life of any person, he should suffer death, or such other
punishment as in the opinion of the jury should be just." I quote the
words of this statute as an instance of the style of legislation which put
it in the power of the jury to select any species of punishment, from
simple fine or reprimand, up to mutilation, torture and death; and that
too for giving a slight wound, or in any manner whatever taking the
life of a person, even in self defence, for there is no exception in the
law. Yet this section was suffered to disgrace our penal law for five
years. It was repealed in the year 1818. But the first section is still
in force; by which any one who suspects I have a knife in my pocket,
may obtain a warrant to take me before a justice, who is authorized to
have me searched, and should the knife be found, he is obliged to make
me pay at least ten dollars to the person who gives the important in-
formation, and as much to the state; and this sum may at his discretion
be more than doubled.
The following provisions, taken without much selection, will suffice
to show the want of proportion between punishments and offences that
(a) See the different divisions of manslaughter by the English law-into that by sudden.
provocation, se defendendo, and fortuitously in the performance of an unlawful act.
L
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INTRODUCTORY REPORT TO
now reigns in our laws. To break the iron collar(a) of a slave must
be punished by a fine of at least two hundred dollars and imprisonment
for at least six months. While the court may punish him who kid-
naps a free person with a fine of ten cents(b); and even for a second
conviction for this odious crime there is no maximum, and the imprison-
ment may be only for a day.
""
By another statute now in force, "if a woman shall be delivered of
any issue of her body, and shall endeavour privately, by drowning or
secret burying thereof, or in any other way,
"so to conceal the
death thereof that it may not come to light whether it be born alive or
not," she and those who aid, &c. shall be imprisoned not less than five
nor more than fourteen years. This is a refinement upon the repro-
bated statute of James 1st, which is not more objectionable from the
severity of its penalty than the want of principle which made the con-
cealment of the birth such evidence of the murder as to throw the con-
trary proof on the accused. But even that statute permitted the
unfortunate mother to exonerate herself by showing that the child was
born dead. Ours, on the contrary, inflicts the penalty for the offence
of concealment, or the private burial of a monstrous or abortive birth.
That statute confines its provisions to the case of a child which, if born
alive, would have been a bastard. Ours, indiscriminate in its provis-
ions, makes no such distinction; neither the unfortunate victim of
seduction nor her nearest relations are permitted to avail themselves of
the accident or the dispensation of providence, which may offer for the
concealment of her weakness; and the modest respectable matron must
expose to the world-But enough, the disgust due to the law
would be excited by the work which details its consequences, were the
subject to be pursued further. It cannot escape remark that the same
punishment is incurred for the crime of drowning, which, if I under-
stand the language, can only be applied to a living infant, that is de-
nounced for interring a dead one.
A legislation equally vacillating and inconsistent with true principles,
is that on the subject of unsuccessful attempts to commit homicide.
It began by the law of the 7th June 1806. By that law, to administer
poison, to stab, or to shoot, with intent to murder, is punishable, with
death. But by a prior law, to which I have before referred, one species
of murder was punishable only by imprisonment. A strong induce-
ment was here offered the offender if he dreaded death more than labour,
to adopt the ferocious motto of the highland chieftain, by making sure
work.
In 1813, stabbing or shooting with any intent, if done with a con-
cealed weapon, was death. In 1818 this law was repealed, and the act
of 1806 remained unmodified until 6th of March 1819. It was made
punishable with death to shoot, stab or thrust any one with a dan-
gerous weapon, with intent to murder, if done by lying in wait or in
the attempt to commit any arson, rape, robbery or burglary; and by
the second section, shooting, stabbing, thrusting with a dangerous wea-
pon with intent to commit murder, under any other circumstances,
is punishable by hard labour only from one to twenty-one years, a wide
field for the exercise of judicial discretion.
This act creates a serious ambiguity in each of its sections. What
(b) Ib. section 6.
(a) Law 6th March 1819, section 5.
THE SYSTEM OF PENAL LAW.
83
is a dangerous weapon? A cambric needle thrust into the spine is as
dangerous as a sword. Yet it can scarcely be called a weapon.
Again, a thrust with the fist of an athletic man without any weapon
at all may be as dangerous as any offensive weapon. This result then
may follow; if in the perpetration of robbery, the offender attempt to
murder a defenceless man or a child by thrusts with his fists, or to com-
mit a rape and murder his victim by endeavouring to smother
her with a blanket, although he is prevented from the accomplishment
of his crime only by the rescue of the sufferer, he escapes the penalty
of the law; but if in attempting the same crimes he should be attacked
and make an effectual thrust with a sword in the heat of a scuffle, with
intent to kill (for all killing in the perpetration of the robbery would
be murder), he would suffer death, although the attempt should be
abandoned as soon as it was made, or although it was only made to de-
fend himself from arrest.
Again, there is no positive repeal of the first section of the law of the
7th June 1806. But the second section of the one we are considering
provides, that to shoot, stab, or thrust with a dangerous weapon, and
with intent to murder, shall in all other cases but those provided for by
the first section, be punished by hard labour only. This last enact-
ment, therefore, is not so broad as that of 1806, which does not contain
the qualification of a dangerous weapon; therefore, as the law now
stands, a stab with an instrument that could not come within the de-
scription of a weapon, would now under the first act be punished with
death, while the more heinous case of a stab with the same intent with
a dangerous weapon, might be punished with imprisonment for one year
only.
Once more let me respectfully ask whether this part of our juris-
prudence does not want revision? But this is only one head; the
same or greater defects may be found in all. The same enacting, ex-
plaining, implied repealing and accumulation of provisions on the same
subject, until in the short period of twenty years, our legislation has
become so confused that the people, and (the truth is so evident that I
shall not offend them when I add) their representatives too, are inca-
pable of discovering what the law requires or forbids. The following
instances may justify my assertion.
By the act of 19th March 1818, the punishment of accessaries after
the fact(a) to any crime, of course including murder, are to be punished
by fine and imprisonment, at the discretion of the court; and that dis-
cretion(b) is limited in all cases to fine of one thousand dollars and
imprisonment for two years. On the very next day a law is passed
punishing the accessaries after the fact of burglary(c) by solitary con-
finement for one year and imprisonment at hard labour for five years.
So that you may aid the escape of a murderer, by our laws, at infinitely
less risk than you incur by performing the like service to one who
has, at night, only lifted the latch of a sugar-house(d) and stolen a pint of
molasses.
(a) Act 19th March 1819, section 9.
(c) Act 20th March 1818, section 6.
(b) Ib. section 12.
(d) By the 5th section of the act 20th March 1818, breaking into a sugar-house at night,
with intent to steal, is made burglary.
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INTRODUCTORY REPORT TO
Larceny (a) is punished by imprisonment at hard labour for any
term not exceeding two years; while the lesser offence, of obtaining
property on false pretences, incurs the corporal punishment of whipping
and imprisonment for one year(b); and by this law, such fraud is
somewhat strangely declared to be an offence against the public peace.
By the act of 6th March 1819, the aiding(c) a slave to run away is
punishable by imprisonment at hard labour, not less than two or more
than twenty years; while kidnapping a freeman(d) incurs only fine,
not to exceed one thousand dollars, and imprisonment not to exceed
fourteen years. The judge must punish the first crime at least by two
years imprisonment, but may suffer the greater offender to escape with
a nominal punishment.
Not to burthen this report with a longer enumeration of these dis-
crepancies, I have thrown into a tabular form an account of all the
statute offences with their present and former punishments. A few other
instances of incorrect legislation in our present penal law will enforce
the necessity of reform. One embarrassing defect arises from the nu-
merous dissimilar provisions in relation to the same subject in successive
statutes which contain no repealing clauses; leaving it in many instan-
ces very difficult to determine whether the penalty was intended to be
changed or commuted. Slave stealers, by the act of 1805, are to be
publicly whipped and imprisoned at hard labour not less than seven nor
more than fourteen years. By the act of 6th March 1819, they are to
be imprisoned not less than two nor more than twenty years. Was
the intent of the latter statute to take away the whipping, or only to
extend the limits of judicial discretion as to the term of imprison-
ment(e)?
Nearly the same difficulty occurs as to larceny. By the first law,
whipping and imprisonment in the alternative of not restoring the goods
stolen, is the punishment. The subsequent act only declares that it
shall be punished by imprisonment.
Stealing or robbery of bonds, bills or notes, is not larceny at common
law. It is made so by statute in England; and as lacerny was to be de-
fined by the common law, not by statute, they are enumerated in the
act of 1805; and it is declared that the stealing of them shall be pun-
ished in the same manner, both as to principal and accessary, as robbery
or larceny of goods and chattels. Does this relate to the punishment
prescribed by that act? or is it prospective, so as to adapt itself to any
other punishment that may afterwards be provided for larceny? If it
is not, stealing of bonds and notes, since the passage of the last statute, is
punished differently from other larceny.
In all these instances, and they might be multiplied, there is no ex-
press repeal of the prior statutes; and as there is nothing incompatible
between the punishments of whipping and imprisonment, the strongest,
perhaps the only good foundation for an implied repeal is taken away.
Yet the degrading punishment inflicted by the first law is so repugnant
to the feelings of freemen, and I may add, in a country like ours, so
(a) Act 19th March 1818, section 1.
(c) Ib. section 3.
(d) Ib. section 6.
(b) Act 3d July 1805, section 2.
(e) I have an impression that the learned judge of the criminal court of New-Orleans ex-
pressed a leaning towards the latter alternative. If I am not mistaken in this, the doubt is
supported by very high authority.
THE SYSTEM OF PENAL LAW.
85
dangerous to its peace, that the rules of construction have been disre-
garded, and a new instance afforded in which the duty of the legislature
has been transferred to the judiciary. They have hitherto exercised it
with discretion; but these doubtful laws may hereafter be made en-
gines of oppression as well as of favour.
The
Another evil in our present legislation is the loose manner in which
offences are defined. I will not here repeat the objections arising
from the references to the foreign law, although they press upon the
mind in every view that is taken of the subject; but there are cases in
which even the obscure light of the common law is denied us.
statute of 22d February 1817 enacts, "that every person who shall
commit the abominable crime of incest shall suffer imprisonment at
hard labour for life." Here our guide entirely fails us. Incest was a
crime unknown to the common law. During the rule of the Puritans
in England, that, and every species of incontinence, were made capital
crimes. The statute, we are told, was not renewed at the restoration,
and I am ignorant what definition it gave to the crime.
With us, if
the Spanish laws are repealed, the law must be a dead letter, or the
judges must make a law explaining the term. If the Spanish laws are
not repealed, we must look to them for the definition; and if they
are, we may. But what will in either case be the serious conse-
quences? In the definition of this crime by that law we have seen
that incest means a carnal connexion between parties related, either by
affinity or consanguinity, to the fourth degree; and as the degrees are
counted by the canon law, it would bring within the penalties of this
law not only the children but the grandchildren of brothers; and
even if we look to the English law of matrimony, as well as to the
Spanish statute, the sister of a wife is included in the prohibition.
After the death of the wife it is not uncommon for the husband to
marry her sister. Suppose such a connexion to be lawfully made in
New York, and the parties remove to New Orleans where they con-
tinue to cohabit. By adopting either of these definitions this is the
abominable crime(a) intended by the statute, for which both of them
must be consigned to the penitentiary for life. What rule shall we
resort to in order to give efficacy to this highly penal statute? The
law gives no guide; and it would be monstrous to suppose the uncon-
stitutional intent, that it should be framed or adopted by the judges.
or both.
By the act of the 7th June 1806, any judge, justice of the peace, sheriff
or other civil officer, who shall be guilty of any misdemeanor in the
execution of their respective offices, shall suffer fine or imprisonment,
Now, without repeating the argument formerly used,
that the reference to the law of England does not extend to offences.
under this law, let us ask what is misdemeanor? Christian, in his
notes to Blackstone, says, "in the English law, misdemeanor is
generally used in contradistinction to felony; and misdemeanors
comprehend all indictable offences which do not amount to felony."
But, by our law, there can be no indictable offence but those created
by statute; but every statute that has created an offence with us has
also prescribed the punishment. What therefore has this law to ope-
rate upon? Nothing, if it relate only to offences that were indictable
before; but if it mean something else, and is intended to create a new
(a) Vide 7 Part. tit. 18, 1. 1.
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INTRODUCTORY REPORT TO
offence, that offence ought to have been defined; or else the court have
not only the judicial task of apportioning within the prescribed limits
what shall be the punishment, but also the legislative duty of declaring
what acts shall be misdemeanors.
Other instances of this defect might be selected, but I hasten to close
the catalogue with pointing out another glaring and dangerous fault in
our present laws. The almost entire abandonment to the judiciary of
that part of the legislative duty, which consists in designating the pun-
ishment that shall be inflicted for each species of offence. This is a
function perfectly consistent with that which, in all good jurisprudence,
is committed to the judge of apportioning within certain limits, the
quantity of punishment to the individual case. A wise legislator so
arranges and classifies the offences he means to punish, that, as far as
may be practicable, a slight variation from the punishment assigned to
the designated crime may accommodate it to the least degree of evil
that can be attached to its commission; he gives this discretion in all
cases in which different shades of guilt may be supposed to have at-
tended the same act; he withholds it only in cases where the least de-
gree of depravity deserves the full punishment that is denounced, and
it is not convenient to increase the penalty against the more immoral
offenders, but he throws all those shades of crime that he can foresee
into as many different classes as he can conveniently arrange, and he
restricts the discretion he gives to the judge within the narrowest limits
in which the distribution of individual justice will permit to be exer-
cised. The reasons for this are evident and conclusive. Every penalty
for the infraction of a law ought to be certain. Where the same act
may be punished by a slight or a heavy penalty, the offender will
always calculate on the slightest punishment; and the infliction of the
heaviest will, for the most part, be considered as an oppression. But
there is a more serious objection to giving a wide extent of discre-
tionary power to the judge. To a certain extent his decrees may be
considered as having the effect of ex post facto law, for the punishment
is not determined until the offence is committed. The prohibition of
the law, indeed, existed before, but the sanction is created afterwards.
Hatred, envy and the other malignant passions may sometimes influ-
ence the mind of the judge; avarice may corrupt it; or the more amia-
ble motives of friendship or compassion may give it an unconscious
bias in the exercise of his functions; but the legislator, who cannot
know when he frames his law upon whom its penalties may fall, can
neither incur nor merit these suspicions. He, therefore, ought to
assign the punishment to the offence; and, in certain cases leave to
the discretion of the judge a power of modifying it to the circumstances
of the offender. In pecuniary penalties a considerable range must ne-
cessarily be given to this power; for a fine that would be ruin to one,
would not be felt as a punishment by another. In a less degree this
applies to simple imprisonment, and least of all to penitentiary punish-
ment; but the difference in their nature between the two first and the
last of thesc punishments is so great, that it very rarely, if ever, ought
to be placed in the power of a judge to inflict the one or the other, at
his discretion. The circumstances that would render the last proper
for offences in which the first would generally be an adequate punish-
ment, ought, if possible, to be detailed and form a different class of
crime. The inefficiency of pecuniary fines to punish the rich, without
THE SYSTEM OF PENAL LAW.
87
putting them so high as to ruin the poor, renders it indispensable to
place the alternative between fine and simple imprisonment in the hands
of the judge.
Let us now examine how far our present statutes conform to these
principles.
Kidnapping a free person is a crime, which, being destructive of per-
sonal liberty, is in the highest degree injurious to society; and more-
over supposes a confirmed malignity of heart, and which of all others
would seem to admit of no alleviating circumstances; yet the statute
permits the court to fine the offender one cent only or to extend it to
one thousand dollars, and to add imprisonment at hard labour for four-
teen years. Is not this completely giving to the judge the power of
legislation after the fact, upon an offence of the deepest die? He may
suffer an offender to escape with a nominal fine, or he may imprison
him for a term more than commensurate, perhaps, with his chance of
life. Let it be remembered, too, that this is a law for the security of
personal freedom; and contrast it with the penalty for stealing a slave,
which, by a prior section of the same law cannot be less than two years
at hard labour. But here again though the criminal cannot escape, as
in the other instance, with impunity, his punishment may at the pleasure
of the judge be increased tenfold, by a sentence to twenty years im-
prisonment at hard labour. And it may once more be asked, what cir-
cumstance in the crime of stealing a slave can make two years impris-
onment a sufficient punishment for one offender, while twenty is not
too much for another?
I can, in this instance, imagine two answers to this question, but each
of them disclose a fault in legislation equally grave, at least with the
one they might otherwise excuse. The first is that the legislature have
not provided as they might have done for the case of a repeated offence,
and that the higher grades of punishment are intended to supply this
defect. But if such was the intention it ought to have been expressed;
the court then would not have had the power which they now have of
awarding the same punishment for a first, that was intended for a second
or third offence. Secondly, it may be said that the offence described
in the statute is not only stealing a slave, but aiding one to escape from
his master, which are two very different offences-one deserving the
highest, perhaps, and the other the lowest penalty of the law. If this
be so, it enhances instead of excusing the incongruity of the act, by
confounding two distinct offences in the same clause, and permitting the
court to punish one offence by the penalty intended for the other.
Take another instance from the same act. To shoot, stab or thrust
by lying in wait, or in the perpetration or attempt to perpetrate arson,
rape, robbery or burglary, is death, if done with intent to murder and
with a dangerous weapon; but if done with the same intent to murder,
but not by lying in wait, or not in the perpetration of either of the crimes
above enumerated, it may be punished by simple imprisonment for
one year only, or by imprisonment at hard labour for twenty-one
years. According to the English definition of terms here can be no
gradation of crime. The party, if convicted, must have given the stroke
not in the heat of passion only, for then it would be a different offence,
but with the deliberate malicious design to murder. The design must
have failed, not from any change of purpose in the offender, but con-
trary to his will. When combined with an intent to commit certain
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INTRODUCTORY REPORT TO
+
crimes, we see that there is no discretion left to the judge: the punish-
ment is death. Yet, when the same offence is combined with the in-
tention to commit any other crime, perhaps not less atrocious,
one year of simple imprisonment may be deemed a sufficient penalty.
To exemplify the operation of this law: if, in the attempt to set fire to a
building not worth five dollars(a), the offender, with intent to murder,
should shoot at and wound the person who discovers and prevents him,
there is no discretion; the punishment is death. But if he in like man-
ner wound the person who prevents him from assassinating his father,
or from poisoning a whole community, it is in the power of the court
to let him escape with one year's simple imprisonment.
This example is taken, almost without selection, from a system which
is considered by some as too perfect to need any amendment! We
must be at a loss in this species of legislation, however, what most to
admire; the severity which punishes the attempt to commit a crime
with the same awful penalty that it inflicts on its consummation; the con-
fusion of principle which thus punishes the attempt to commit the
highest crime because it is made in the perpetration of an inferior
offence; the want of judgment and indifference with which the selection
of these lesser offences is made; or the jealous denial of discretionary
power to the judge in the one instance, and the prodigality of confi-
dence with which it is lavished on him in the other. The table at the
end of this report will give so many examples of this defect in our
system, that I need not multiply them here.
It might seem an invidious task to proceed and develope the evils
that pervade our penal jurisprudence, from which, however, I should not
shrink were it necessary. Enough has been said to show :
That as respects certain crimes, the law to which we are referred for
their definition, prosecution and the evidence required on their trial,
is not only in itself uncertain, but is placed entirely beyond the reach of
the people.
That even that rule, uncertain and difficult of access as it is, has not
been provided for offences against any of the statutes passed since that
of May 1805.
That if a long list of oppressive and absurd penal laws, forming a
part of those by which the country was governed prior to the cession,
are not now in force according to the strictest construction of law, at
least reasonable doubts may be entertained on that subject, and that in
bad times they may be made the instrument of oppression.
That our penal statutes remedy none of these defects:
They repeal none of the ancient laws :
They give new penalties for offences punishable by former statutes,
leaving it doubtful whether they are intended as substitutes for the old
punishments or as additions to them:
They punish slight offences with undue severity, and impose incon-
siderable penalties on more dangerous crimes:
They give in some instances to the judiciary a discretion trenching
on legislative power, and wholly deny it in others where justice and
humanity requires its exercise:
They leave unpunished many acts and omissions injurious to society,
(a) By the act of 22d February 1817, burning any building is made arson.
THE SYSTEM OF PENAL LAW.
89
while some others are made offences which might be repressed by pub-
lic opinion or private suit.
They are multiplied without necessity on the same, or different modi-
fications of the same offence; giving occasion frequently to doubts.
whether the new statute is intended as a substitute for or an addition to
the old.
They are deficient in precision of language and in the order required
by proper arrangement.
Such laws are unworthy of an enlightened, and dangerous to a free
people; and if you had not given the pledge contained in your law of
1820; if you had not attracted the attention and excited the hopes of
the good, and the wise, and the liberal throughout the civilized world-
attention which is still earnestly fixed upon you! hopes which you
cannot without dishonour fail to realize; if you could be insensible to
the noble distinction of emerging from the subordinate rank of the
youngest member in the union, taking the lead in a most important re-
form, making by your example a new era in the history of penal juris-
prudence; if you could consent to renounce the glorious privilege of
conducting your country to the best pre-eminence among nations, and
associating your own names with those of the benefactors of mankind ;
if you could be influenced by the timid fear of innovation or the sense-
less clamour of prejudice to throw away this rare occasion of founding
a glorious reputation for yourselves and for your country, on the solid
and permanent basis of public good; if it were possible for you to be
blind to these advantages, deaf to these arguments, yet you could not,
without an entire abandonment of official duty, any longer delay to
remedy the evils which are thus brought to your view, and others as
great which cannot escape your discernment.
Legislative functions are in the most ordinary times attended with
high responsibility. Yours, from the duty which your predecessors
have imposed upon you, are peculiarly so. From the performance of
this duty there is no escape. The defects of your penal laws are ar-
rayed before your eyes. Former legislative acts have declared that they
exist, and they have established principles and laid down rules by which
laws are to be framed for their removal. Those laws are now submitted
for your consideration. You cannot avoid acting. It is impossible to
say that the evils are imaginary. You must then either declare that
the principles for correcting them, heretofore unanimously established
by the representatives of the people, are erroneous, or that the plan pre-
pared is not drawn in conformity with them. In either alternative the
duty of correcting the principles or reforming the work is one that
must be performed. For, disguise it as we may, it is a truth which
must be told and ought to be felt; that, circumstanced as you are, should
you shrink from the performance of these duties, to you will be attri-
buted the future depredations of every offender who escapes punishment
from the ambiguity of your laws; the vexations of all who suffer by
their uncertainty; the general alarm caused by the existence of your
unknown and unrepealed statutes; the depravity of those who are cor-
rupted by the associations into which they are forced by your prison.
discipline; the unnecessary and violent death of the guilty; and, worse
than all this, legislators! the judicial murder of the innocent who may
perish under the operation of your sanguinary laws. All this, and
M
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INTRODUCTORY REPORT TO
more will be laid to your charge(a), if you do not embrace the oppor-
tunity that is afforded to reform them; for the continuance of every
bad law, which we have the power to repeal, is equivalent to its enact-
ment. Whether the mode of reform now offered is the one most proper
to be adopted is, with unfeigned diffidence, submitted to the superior
wisdom of the general assembly; but that some change is necessary,
is boldly and without fear of contradiction advanced as an irresistible
conclusion from the view that has been taken of the state of our penal
jurisprudence. Of what nature shall that change be and to what extent
shall it be carried, are questions which come now to be considered.
A repeal of all the Spanish penal laws, and of such of our own statutes as
throw any uncertainty in the construction of those which we choose
to retain, would relieve us of part of the difficulty; but this would
be a palliative and give us only a partial relief. Other cases must be pro-
vided for by new statutes; and what security can we have, while this
patch-work system continues, that in a few years the same or greater
incongruities will not be found in your laws? But supposing this diffi-
culty to be surmounted or not to exist, a greater remains. Where are
we to look for our rules and forms of proceeding from the arrest to the
execution? In what statute are contained the rules of evidence, and
where shall we find the regulations by which our penitentiaries and
other prisons are to be governed? The Spanish laws of procedure, if
they are unrepealed, do not fit our institutions; their rules of evidence.
we have seen will exclude nearly all testimony but that forced from the
lacerated limbs of a tortured accomplice: and their prison discipline we
surely shall not be tempted to establish. We cannot again resort to the
concise but comprehensive legislation formerly employed. We cannot
refer to and adopt the common or any other law, either en masse or
generally, on any given branch of jurisprudence. That door is consti-
tutionally closed. No more legislation by reference. This device,
excusable from necessity (b) in the infancy of our political existence, is
wisely prohibited to our maturer understanding. Representatives can
no longer jeopardize the fortunes, reputations and lives of their con-
stituents by the use of an unintelligible phrase; they must understand
and express what they mean; they must do it clearly and in detail.
Foreign laws can no longer be imported by the package, or described in
the act of introducing them as goods are in the bill of lading, "contents
unknown"; but in the imperative words of the constitution, the gen-
eral assembly" shall in all cases specify the several provisions of the laws
they may enact.
""
(a) "Lawgivers should reflect that they are immediately, and in effect, the executioners
of every fellow-citizen who suffers death in consequence of any penal law."-Eden. Pe-
nal Law.
(b) The first legislative council-highly respectable men, but not qualified by their edu-
cation or pursuits to the task of legislation-did all that could be expected from them. They
called to their assistance in this branch a gentleman (James Workman, Esq.) whose natural
as well as acquired powers eminently fitted him for the task, and whose principles and in-
tegrity always direct his exertion in the public service. His high professional as well as
private character justified the choice. But they committed the great error of limiting him
as to time. What human exertion could do, he performed. He could not, as I know he
wished, offer a complete system. All he could give was a general summary, and a reference
to other laws for cases unprovided for. It is to be regretted that full scope was not given
to the talents of this gentleman; the humbler exertions of those now employed would have
then been rendered unnecessary.
THE SYSTEM OF PENAL LAW.
91
On these parts of the subject then-and they form three-fourths of
the system-the question is reduced to one of mere form. We must
have detailed laws. Shall they be framed into codes, or dispersed in
different independent statutes? By whatever name they may be
called, you must enact rules and prescribe forms; you must provide
laws to regulate the admission and weight of testimony, and a plan for
the government of your prisons.
The advantages of having these reduced to order, under proper heads,
and making them component and consistent parts of the same system,
are so obvious, the state has already derived so much benefit from a
similar improvement in the civil branch of its jurisprudence, that it
would scarcely seem necessary to say any thing on this subject; but as
this part of the plan has not escaped censure, it may be proper to offer
a very few and very brief remarks, to show its utility.
Laws, to be obeyed and administered, must be known; to be known
they must be read; to be administered they must be studied and com-
pared. To know them is the right of the people. Their administra-
tion is the duty of the magistrate. But that mode which with the least.
trouble, in the shortest time, and at the least expense, brings the enjoy-
ment of this right and the performance of this duty within the reach
of those to whom they are appropriated, that mode is the best; and
were two systems submitted to our choice, we should, for the purpose
of making a selection, only have to compare them and determine in
what degree they severally were calculated to produce these effects.
But here the question is not which of two systems is the best; but whether
it is better to have a system or none; for there is not, in our present
criminal legislation, the least appearance of plan or arrangement.
Yet if this character deserves the epithet which is given by the poet,
when he calls it emphatically "lucidus ordo," how can we expect that
the necessary light will be shed on our laws without it?
A representative is instructed by his constituents, or led by his own.
observation, to bring in a bill to repress a prevailing vice. A prepar-
atory step is to know whether it has already attracted legislative notice.
To discover this he must examine all the acts concerning crimes and
punishments, for the titles of none of them designate the particular
offence which they forbid. He, perhaps, finds a provision on the sub-
ject, crowded into a section(a) with others to which it bears not the
least relation. But has it not been repealed or modified? Another pain-
ful search in which he discovers a second law (b). Is it consistent with
or repugnant to the first? Another question which he has not the time
or skill, or patience to resolve; and he brings in a third bill to increase
the doubts and perplexities of his successors.
Is the task easier for the magistrate? Called on, we will suppose, to
(a) See the 28th and 31st sections of the act of 4th May 1805. In the first, breach of
prison, taking a reward to return stolen goods, compounding felony, and conspiracy to indict
an innocent man, are confounded together in a clause not longer than this note, and all these
offences are subjected to the same penalty. In the socond, rioters, breakers of levees and
libellers, are most heterogeneously mixed.
(b) See the several acts concerning forgery, larceny, burglary, &c. No reference is made
to them here by title or date, that the readers of this report may, in the search for them, and
in the task of reconciling them after they are found, have a small specimen of the difficulties
mentioned in the text.
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INTRODUCTORY REPORT TO
perform one of the most ordinary functions of his office, in which he
must determine whether the law requires him to deprive a fellow citi-
zen of liberty; whether he has a discretion to discharge him on bail, or
whether he is bailable of right. He first consults the digest of our
laws up to the year 1816, and in it he searches in vain for such a title
as bail. Under that of justice he finds something, but it is only the
beginning of his labour. He is there told that if the offence be "not
punishable by death, or not exclusively cognizable by the superior
court, "that he must take bail; and afterwards in the same section, that
if the offence be punishable by death, that he must commit the ac-
cused. But what is to be done with him if the crime be not punishable
in that manner, yet is one of those of which the superior court had ex-
clusive cognizance, is not said. He cannot under this law take bail, for
it is a case excepted by the first clause. He cannot commit; for the
authority is not given by the second, which is confined to the two cases
of crimes punishable by death, and a refusal to give security. First
difficulty for the magistrate. He happens to look into the constitution,
and he finds," that all prisoners shall be bailable by sufficient securities
unless for capital offences;" how shall he reconcile this with the
law, which excludes other offences, namely, those which are exclusively
cognizable by the superior court? Second difficulty for the magistrate.
When these are surmounted, he must inquire what is a capital offence,
and what offences are exclusively cognizable by the superior court?
This leads to an examination of all the penal statutes.
As there is no
classification, no order, not even a general index, he must examine every
law and every section of every law; for, as we have seen, our statute
offences are strangely associated, and there is no knowing where the
provision he seeks for may be hid. Third difficulty for the magistrate.
But we will suppose him a persevering intelligent man, and that this
also is conquered. He has another not less stubborn in his way.
the offence in question is one of those enumerated in the act of 1805,
he has to look to the common law of England for its definition, for the
rules of evidence which he is to take, and for all those proceedings.
which are not among those prescribed in the act. If it be an offence
against a statute of a subsequent date, he has no rule, and neither Burn,
nor Blackstone, nor Coke himself, can tell him how he is to proceed.
If
As to the citizen who is neither representative nor magistrate, I need
not enumerate the difficulties that stand in his way, for he never at-
tempts their encounter; and it is no bold assertion to say, that not one
in an hundred, even in the educated part of the community, can, in the
nature of things, have even a superficial knowledge of the criminal laws
by which he is governed, and which he is expected to obey.
All these and a thousand other evils might be avoided by a simple
arrangement of the penal law under its different heads, and in short sen-
tences; where every thing required to be known might be found in its
place, and might be understood when it was found; where the eye of the
legislator(a) might, at one comprehensive glance, discover, from what
was done, what ought to be supplied, corrected or restricted; where
magistrates could find simple directions for the performance of their
(a)" The enacting of penalties to which a whole nation shall be subject, ought to be calmly
and maturely considered, by persons who know what provisions the laws have already made
to remedy the mischief complained of."-Bl. Com.
THE SYSTEM OF PENAL LAW.
93
duty; judges, in the precise language of the law, see the limits and ex-
tent of their discretionary powers; jurors learn how they are to act, so
as neither to abuse nor surrender their important privileges; citizens
how to defend their own rights and protect those of others; and the whole
community acquire the knowledge of that which all may at some(a)
time or other have so high an interest in knowing.
The consideration of expense, too, though of less importance than the
others which have been urged, is not without its consequence. Every
session of the legislature produces from sixty to an hundred laws;
three-fourths of them private acts; and one or two on an average which
have some bearing on the penal law. But they are all published in the
same volume; so that whoever wishes to possess the statutes on that
subject must go to the expense of a whole set of the laws, and think
himself fortunate if he can procure them, for the greater part are now
out of print; and should duty or inclination induce him to wish for a
more perfect and not less necessary knowledge of this branch of our
laws, he must procure a common law library at an indefinite expense.
All this could be avoided by the adoption of a system in which, without
trouble and at a small expense of time or money, the whole penal law
would be placed within the reach of all.
No one can be blind to the incalculable advantages our state has de-
rived from its civil code. Yet that code is imperfect and must necessa-
rily be so. The endless variety and ever changing nature of contracts
and other civil relations must always make it as difficult to frame, as it
must be incomplete, after the utmost care in its construction. But a
penal code is susceptible of a nearer approach to perfection. Nothing
being an offence but doing that which is forbidden, or omitting to do that
which is enjoined by the law. It follows that as the law can only enjoin
or forbid by the use of language, there can of necessity be nothing penal,
but that which is not only foreseen, but expressed by the legislature; in
other words, that which is contrary to written law; and whenever an
act is not thus forbidden or enjoined, there can be no punishment for do-
ing or for omitting it. If, therefore, the greater difficulties of framing a
civil code have been surmounted so far as to render it an acknowledged
blessing to the country, why should objections be raised to the easier
operation of making a written system of penal law?
Other general objections, which apply to any written code that could
be proposed, have been urged, and must be answered before we consider
the particular provisions of the system now offered. They are,
(a) The observations of Blackstone, repeating and enlarging on what was so happily ex-
pressed by sir M. Foster, although frequently quoted, cannot be too often repeated for the
use of all legislators, who too readily imagining themselves and their connexions beyond
the reach of any operation of the criminal laws, pay little attention to the evils which they
may produce to the community at large. "The knowledge of this branch of jurisprudence,"
says this celebrated commentator," which teaches the nature, extent and degrees of every
crime, and adjusts to it its adequate and necessary penalty, is of the utmost importance to
every individual in the state; for no rank or elvation in life, no uprightness of heart, no pru-
dence or circumspection of conduct should tempt a man to conclude that he may not at some
time or other be deeply interested in these researches. The infirmities of the best among
the vices and ungovernable passions of others, the instability of all human affairs, and the
numberless unforseen events, which the compass of a day may bring forth, will teach us,
upon a moment's reflection, that to know with precision what the laws of our country have
forbidden, and the deplorable consequences to which a wilful disobedience may expose us,
is a matter of universal concern." 4. Bl. Com. p. 2.
us,
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INTRODUCTORY REPORT TO
First, that it is an innovation, and therefore to be avoided.
Second, that we suffer no inconvenience from the present state of our
law.
Third, that it will require much time and trouble to become ac-
quainted with a new system.
Fourth, that it may be good in theory but bad in practice.
Fifth, that the terms of the new code will require to be explained by
judicial decisions and commentaries, which will produce the same or
a greater accumulation of authorities than are now complained of in the
common law.
1. The hacknied objection against improvements that they are new,
amounts to no more than that they are improvements; and the fallacy
has been so often exposed that-the perseverance of those who still use
it is truly wonderful, and would deserve our admiration in a better
cause. Their objections hold the very reverse of the wise king of Is-
rael's doctrine, that there is nothing new under the sun. With them
every thing is new, and they use the epithet as synonymous with bad
or at least with dangerous. But the truth is, that with us a body of
written, to the exclusion of traditionary laws, is no innovation. We
had them before the cession, and our first care afterwards was to provide
them, better suited to our circumstances in civil cases. An experiment
in any of the occult sciences is said to be most successfully made, when
the desired effects have been produced, under the most unfavourable cir-
cumstances. It is the same in legislation, and we may consider the
favourable result as completely ascertained; for our experiment has
been thus made. It has succeeded in the most difficult branch; succeeded
under every disadvantage of imperfect execution, and in opposition to
professional and national prejudices; succeeded, too, so completely, as to
silence every objection to the measure itself, and leaving none but to some
of the details which more mature revision may remove. This then is no
further an innovation, than as it applies the same remedy that has suc-
ceeded in the complex case of the civil, to the simpler one of the crim-
inal department. It is, on the contrary, the removal of one which was
formerly made the mischievous and dangerous reference to a foreign
and unwritten code; and indeed there can be no change which does not
destroy something that was itself, when first introduced, an innovation.
The truth is, that by repeating a word or a phrase very frequently,
and using it always in a bad sense, an indefinite idea of evil gets attached
to it, which makes it a very convenient instrument in the hands of
those who are at a loss for more legitimate weapons in argument. This is
the case with the word in question; and many excellent measures have
been defeated merely by repeating it, accompanied by some gesture
of disapprobation, and reinforced sometimes by the sage observa-
tion of "good in theory but bad in practice," a phrase of equal
import, which we shall presently analyse. In the mean time it
is put to the recollection of every member of the honourable body to
whom this report is addressed, whether these precise words have
not frequently been used as objections to the measure now proposed ?
If the objection were, that it is a bad or a dangerous innovation, its
merits would immediately come under discussion; and this ought to be
the object of every one who proposes a change. Of this he would have
no right to complain, and the question ought to be so stated as to throw
upon him the burthen of showing the expediency and practicability of
THE SYSTEM OF PENAL LAW.
95
the measure he advocates; for there is no doubt that every change of
laws, or the manner of administering them, must be attended with some
inconvenience, and is therefore to be avoided. And he is justly to be
reproached as an idle or mischievous pretender, who proposes any
change without being able to show, not only that it would be useful if
adopted, but that it is practicable, and that its advantages will more than
compensate the evils of the operation. But he has a right to expect that
a good and necessary measure will not be rejected on the vague charge.
of innovation, which, being strictly true as applied to every change, can-
not be denied, and is hurtful only from the improper meaning affixed to
the term(a).
2. The next general objection is, that there is no necessity for a change;
the peace of the state is as well preserved as that of any other in the union;
crimes are not more frequent; justice is well administered; and if any
evils should result from our present system, it will be time enough to
correct them when they arise. How much of truth there is in the al-
legations by which this objection is supported, may be determined by
referring to a former part of this report, in which the present state of
our criminal jurisprudence is detailed. No comparison can with justice
be made, between the situation of other states in this respect and ours.
With them the common law is indigenous; they have grown up under
it and modified it to their wants and conveniences. They have not the
embarrassment arising from the laws of foreign countries unrepealed
among them. Their people speak all the same language and are familiar
with all the technicalities of the law. Yet without these pressing induce-
ments, many of them have reduced their criminal code into something like
system. A large majority of them have adopted the penitentiary plan,
and have given their laws the shape it requires; and the legislature of
one of the largest and most influential among them is now OC-
cupied with the revisal of all their laws, including the criminal code, and
throwing them into a methodical form. But whatever be the compar-
ative situation of ours with other states, as to the condition of their penal
laws, we know that ours are extremely defective; and although the
body politic can move on in spite of these defects; although anarchy
does not reign, and the laws, bad as they are, curb offences in some de-
gree, we should scarcely be justified to ourselves, to our country, or to
our God, for neglecting the means in our power to remedy the existing
and prevent the future mischief of a system, so extremely defective as
our own. The suggestion that all must be right, because we do not see
and feel the evil in our own persons, creates a fallacious security, and, it
may be, a fatal one. If it were true that no evil has yet arisen from the
effects of a system which we see must eventually produce it, we should
(a) The man who has thrown more light on the science of legislation, than any other in
ancient or modern times, speaking of this kind of objection says,
CC a few words then are
necessary to strip the mask from this fallacy: no specific mischief, as likely to result from
the specific measure, is alleged; if it were, the argument would not belong to this head.
What is alleged is nothing more than that mischief, without regard to the amount, would
be among the results of this measure. But this is no more than can be said of every legis-
lative measure that ever did or ever can pass. If then it be to be ranked with arguments,
it is an argument that involves, in one common condemnation, all political measures whatso-
ever, past, present and to come; it passes condemnation on whatsoever in this way ever has
been or ever can be done, in all places as well as all times."-Bentham's Book of Fallacies.
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INTRODUCTORY REPORT TO
bless God, and hasten, before it is too late, to prevent those ills which
we cannot compensate after they have been suffered. To defer it, is as
wise as to wait until some traveller has been lost in the torrent that
crosses the way, before we build a bridge to pass it.
But is it true that no evil is already felt? Is it only to prevent future,
not to remove present mischief that we are called on to legislate? To
answer these questions we must look to the general operation of our
laws on the character and morals of the whole community as well
as to their particular application. Nothing in a free government can
be a worse symptom, than an indifference to bad laws, because we do not
suffer by their immediate operation. In the people, it evinces a selfish
feeling, a carelessness of the welfare of others, and an insensibility
to public good, destructive of every patriotic sentiment. This danger-
ous apathy is created and fostered by suffering the existence of impoli-
tic or oppressive laws, although circumstances may not have called for
their application. We become familiar with them and learn to consider
as innocent that from which we feel no present inconvenience; and,
presently, as necessary that which has so long continued; and when in
evil times these instruments, ready fashioned for the hand of oppression,
are brought into operation, it is illegal to resist, and we know not how
to avoid the stroke. But in a community such as ours, there will al-
ways be a large proportion who have understanding enough to see and
fear the danger. To those this apprehension is a continued evil, at-
tended with the humiliating sensation of having life, liberty, reputation,
or property at the disposition of another(a), which must always be more
or less the case under any but a good system of penal laws. There is,
then, evil, positive evil, the evil of political degradation or constant
apprehension, even though the laws should never be executed. But that
is not the case; they have a general, active and most pernicious opera-
tion; one that never for a moment ceases, and for the continuance of
which every legislature that meets incurs a most awful responsibility.
The only punishments, with the exception of death(b), now inflicted,
are fine and imprisonment. To some crimes the law adds hard labour;
but as no means are provided for inflicting this punishment, the only
confinement that is suffered is one of idleness, debauchery and vicious.
association. Of all punishments this is the most unequal and most in-
jurious to society and to the individual. As this subject will be fully
discussed in the preliminary report on the Code of Prison Discipline,
(a) In some memoir of the reign of Louis XV. we read of a courtier whose duties called
him very frequently about the person of the monarch with whom he was a kind of favour-
ite; but far from enjoying this distinction with pleasure, he was observed always to be ex-
tremely agitated in the royal presence. On being asked by a friend to account for this
feeling, he said, "I have indeed every reason to be satisfied with my treatment; but
whenever I am in company with the king, I cannot avoid saying to myself, there stands a
man who whenever he pleases may chop off my head or bury me alive in the Bastile.
Judge whether with these reflections I can be happy." The existence of bad laws must
have the same effect upon every considerate citizen, that the presence of his master produced
on the disturbed faculties of the courtier. The sword, though it never fell, destroyed the
festivity of Damocles.
(b) Whipping maintains, as we have seen, an existence of doubtful authority on the stat-
ute-book, and the pillory is prescribed as a specific against the disorder of one offence only;
neither, however, have, I believe, been administered of late years.
THE SYSTEM OF PENAL LAW.
97
it is not now intended to enter into the reasons which conclusively
show, that the laws which permit or direct the indiscriminate associa-
tion of the innocent with the guilty, before trial, and of those affected
with different degrees of guilt, after condemnation, are themselves the
great causes of the depravity which they profess to punish. Such laws.
are ours; such are and always will be their effects; and you, legisla-
tors! you have collectively the power to remove this evil, to repeal
these laws, to replace them by those which are better-worse, you can
scarcely substitute. Each of you, individually, may cast off the respon-
sibility of their continuance, by an earnest, sincere resolve to adopt what
is good and amend what is erroneous in the system that is proposed; and
by rejecting with disdain the false, and fallacious, and dangerous lullaby
that is sung to your consciences, that all is well. All is not well! The
general operation of your laws destroys the morals of the people, saps
the foundation of your liberty, and is calculated to spread general alarm.
By their particular operation, they endanger the safety of the innocent
and favour the escape of the guilty. These last characteristics will be
made more apparent in considering the particular provisions of the dif
ferent codes, more especially that of procedure. Here it will be suffi-
cient to indicate, that the severity of some of your penalties, dispropor-
tioned to the offence, and repugnant to the feelings of the people, always
have and always will induce witnesses to avoid prosecuting, jurors to
acquit against evidence, judges to recommend to undeserved clemency,
and the pardoning power to be indiscreetly exercised: that the law
which has been prescribed for criminal proceedings, in certain cases, by
legislative authority, and adopted without any authority at all, in
others, is eminently calculated for the escape of the guilty, by the nu-
merous objections which it admits to the forms of proceedings: that if
instances are not produced to you of individuals suffering innocently,
you are not, from thence, to conclude that such cases do not exist; for
no act being guilt, but one that is intended to be forbidden by the law,
whenever that is so ambiguous, or its definition so loose, as to render it
doubtful whether one act or another comes within its intent, the chances,
-why is it necessary to use this term in speaking of that which ought to
exhibit moral certainty ?-the chances of a decision in accordance with,
or contrary to the meaning of the legislator, are equal, and of course it
is as probable that the penalty may fall on the head of the innocent, as
of the guilty(a): and, finally, that the innocent are made guilty, and the
guilty become more depraved, and both suffer incalculable moral and
physical evil by their indiscriminate(b) confinement.
(a) The organization of our criminal courts gives a good reason why instances of errone-
ous decisions cannot be produced. There is no legal mode of examining them—no review !
-no appeal! Eight independent judges, each gives his own construction on a mass of laws,
the most liable to misconstruction, without any means of comparing or reconciling them.
The reporter has not ventured to propose in this system a remedy for this most flagrant evil.
He once proposed it, and the bill is on the legislative files. The double influence that
defeated it, is still in force. It exists in human nature. Few men like to have their errors.
exposed, and as few like the trouble of correcting those of others, without additional com-
pensation.
(b) This is not a repetition, although the enormity of the evil would excuse its being
brought frequently to notice. When formerly mentioned, it was to show its general de-
moralizing effects on the whole community. Here it is enumerated as one of the causes of
individual suffering.
N
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INTRODUCTORY REPORT TO
3. But we are also told, that the introduction of a new system will be
attended with trouble and expense: trouble to learn its provisions;
expense to carry it into effect. Of this there is not the least doubt. All
laws that ever were or ever will be made are liable to this objection.
But whatever trouble they give in learning them, or whatever sum they
cost in making, we must have laws; and if we are wise, we must have
good laws.
If those which now govern us are good, he would be mad,
or worse, who should propose to change them. The first question, then,
is one that has already been discussed, are our present penal laws good or
bad? Their defects have been shown. No man who has considered
the subject, can call ours a good system. But as good and bad are rela-
tive terms, the present laws not being perfectly bad, nor any that can be
offered to replace them perfectly good, our inquiry is reduced to one of
expediency. We must compare the present state of things, its advantages
and evils, with those of the system that is proposed, and as the scale
preponderates decide to remain as we are, or to adopt this or some
other code in its stead. The materials for forming the first part of this
judgment are already before you. The evils of our present laws have
been exhibited; and if the advantages have not been displayed with
equal care, it is because all that has been thought good in the excellent
materials which are found in its composition, have been used in the
construction of the new system that is offered to replace it. Another
part of the operation, the consideration of the advantages and defects
of the new system, must necessarily be deferred until we enter on the
detail of its provisions.
To dispose of the present objection, we will, first, consider the evils
attendant on every change that may be proposed, and compare them.
with those which we now suffer, or must expect as inevitable, from a
continuance in our present state.
First, the prominent objection of the trouble and inconvenience of
learning a new system. To give any weight whatever to this reason,
we must suppose a state of things which does not exist; we must sup-
pose that the present laws are known-known to those who are to obey,
as well as to those who administer them; because, in all evils in govern-
ment, it is amongst the greatest, that the laws, particularly the penal
laws, should be a mystery to the people, and the knowledge of them
confined to certain designated classes or descriptions of men. They
invariably make a property of them in the strictest sense of the word;
a property that must be paid for, whenever it is wanted for use; and,
like other articles of commerce, is not always sold in a pure unsophis-
ticated state; and the unfortunate purchaser of the adulterated commodity,
has no means of determining whether it be good or bad, until he has in-
curred some loss, or made himself liable to some penalty by trusting
to it. And, to carry on the metaphor, the seller himself may have been
equally deceived in them, for a written code is the only public inspec-
tion office at which the stamp of authority is given to legal opinions,
and by a reference to which, their correctness may be tested. But it
has been shown-it is believed to demonstration-that with a very
considerable portion of its penal laws, three-fourths of the people of this
state cannot, in the nature of things, be acquainted; that the other fourth
can know it but partially; and to any one who has attended our courts,
it must be evident, from the number of contradictory cases and authori-
THE SYSTEM OF PENAL LAW.
99
ties cited, sometimes on the simplest points (a), that even those who
have made it the study of their lives to expound these laws, and those
whose duty it is to apply them, are not yet masters of their provisions.
Each advocate relies on his own authority, and the judge, perhaps, de-
cides according to a third.
The present law, then, is wholly unknown in some of its essential
parts to a large majority of the people, because those parts are either not
written at all, or written in a language that is not understood; and, to
say no more, it is not perfectly known to those who are paid (b) to explain
and administer it. Here the proposed system has a decided advantage;
for it retains almost all that is now known, and renders that accessible
which could not be approached before. It can be read in the language.
of the reader. It can be read in one book, without being obliged to have
recourse to a hundred. Its terms are simple and intelligible, or are made so
by explanation. It is methodized, and the part that is required, may be
found without trouble. If it is adopted, the law no longer is a snare for the
".
(a) For proof of this assertion, if any be wanted, open at random any report of a criminal
trial at common law. In the case already referred to, of the Territory v. Barran, fourteen
cases were arrayed on the one side, and were met by an equal force of fourteen on the other;
each of them equally law, because each was pronounced by sir William Blackstone's living
oracles; and yet fourteen of them must have been false, if the other fourteen were true.
In another case, the offence was, in the indictment, stated to have been committed "in
the city of New Orleans," which we all know to be in the First District; and lest that might
be forgotten, the words "First District" were put in the margin. A conviction took place
on this indictment; but a motion was made to arrest this judgment, because the words "in
the district aforesaid," were not inserted after the words "New Orleans." Twenty au-
thorities, equally conclusive, were cited on this important question. And it was decided,
that the words were necessary; and the defendant, although found guilty, escaped punish-
Will this decision be a rule in future cases? To use a favourite phrase to express
judicial legislation, does it settle the law? The general assembly may judge from the follow-
ing statement:
ment.
In the case of the Seven Bishops, three judges decided that surety of the peace might be
required in a case of a libel. One judge dissented. In the case of John Wilkes, Lord
Camden, in declaring the opinion of the court, according to the report, says, that the dis-
senting judge (Powell) was the only honest man of the four, and subscribes to his opinion,
declaring that "it is absurd to require surety of the peace or bail in the case of a libellous
suit."
In the case of Nugent, the superior court of the territory of Orleans, decided contrary to
the opinion of the court, as declared by lord Camden, and required the defendant to give
security for his good behaviour. What has been decided in the eight several independent
courts of criminal jurisdiction, since that time, I cannot say. What sides they have taken
between lord Camden and judge Martin, I cannot pretend to know. But I ought to add,
that one reason alleged for not subscribing to the opinion of his lordship, was, that it was
believed to be inaccurately reported, thereby adding the high authority of our own judiciary,
to the support of what I have said, as to this source of uncertainty in the English law-an
uncertainty not theoretically feared, but practically felt in forming the decision just quoted.
(b) Any reflection derogatory to the learning, ability, or integrity of the respectable judges
and other magistrates, who administer our criminal law, would be so unbecoming, not to say
unjust and disrespectful, that it is hoped nothing of this kind will be understood by the re-
port, or imputed to its author. What is meant by this, and similar observations in this work,
is, that the laws themselves are in such a state, composed of such heterogeneous materials,
drawn from such obscure sources, and so confusedly put together, that it is impossible for
the most assiduous application and the quickest apprehension to master them.
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INTRODUCTORY REPORT TO
unwary; all its penalties are exposed; whoever incurs them must do it
wilfully; the good citizen clothes himself in their protection, for they
teach him all his rights and all his duties; the knave knows and fears
them, for he sees that they cannot be evaded nor broken with impunity;
the diligent may easily acquire a knowledge of all their contents; the
more negligent knows where the provisions that suit his immediate oc-
casions are to be found, when they may be wanted, and no one will
have occasion to pay another for expounding laws, which, being intended
for general use, are suited to the capacities of all. These will be the
effects of a good system. Nearly the reverse is experienced under the
present. And I think it may safely be asserted, that less time will be
required to obtain a perfect knowledge of any law that is reduced to
writing, and framed with a tolerable attention to clearness and method,
than would be necessary to learn that part of those which now govern
us, which is unknown even to its professors. But should it be con-
ceded that this supposition is unfounded, and that greater trouble would
be required than is supposed, to master the differences between the old
and the new system, for those who have studied the former, yet this can
apply only to ourselves, to those who are now on the stage of public
life. But those who are just about to take their places there; the count-
less succession of legislators, judges, advocates, magistrates and officers,
who are to replace them!-the multitude even in the present day, who
have not yet studied the present laws, but who are bound to obey them!
-the millions who are to follow them in the lapse of those ages which
every good citizen must wish his country and its institutions to endure!
-is the curse of bad laws, and the odious and painful task of learning
them, to be entailed on these for ever, to save ourselves the task of a
few days or weeks mental application? But this inconvenience, what-
ever be its amount, cannot be avoided. The new system must be
studied. It cannot be rejected without examining and weighing its
provisions; and if in performing this duty, those who study it to find
out defects and objections, would give but half the care in amending
what is wrong, or pointing out and advocating what is right, we should
hear no more of their objections to adopting it. This argument is
addressed to enlightened legislators, who know that their labours are
not to be confined to the ephemeral operation of the present day. To
those upright magistrates who are ever ready to sacrifice their personal
convenience to the permanent good of their country; to the high-minded
members of an honourable profession, who cannot but see the uncer-
tainties and incongruities of our present laws, and who would scorn to
make public evil contribute to their private good: these classes com-
prise generally all who, having any knowledge of the system now in
force, would find some little part of that knowledge useless by the in-
troduction of a new one; and to either of these it would be insulting
to express a doubt of their readiness to devote the time necessary for
this new study; or that they would for a moment put in competition
a trifling and temporary personal inconvenience, with a lasting and im-
portant benefit to their country. It must be observed, that I am now
answering the objection of trouble and inconvenience only, as applicable
to any change; and that, therefore, it is permitted to consider the change.
as an advantageous one; for it will most readily be conceded, that neither
trouble nor expense ought to be incurred, for replacing a bad system by
one that is not better.
THE SYSTEM OF PENAL LAW.
101
:
The arguments on this head have hitherto been based on an assump-
tion that we had a choice either to remain as we are, or to change; but
if the facts already stated are true, and the deductions from them are
correct, there is an absolute necessity for the change. The Spanish laws.
must be abrogated the incongruities in your own must be corrected:
rules must be provided for defining, prosecuting and trying the offences
not enumerated in the act of 1805 and a penitentiary must be provided
and laws must be made for regulating its discipline, or else some other
mode of punishment must be substituted for the one to which the
criminal is sentenced, but which there are no means to enforce. There
is a moral obligation to do this. No part of it can be omitted, con-
sistently with the first duties which representatives owe to their con-
stituents. There is a necessity for all this and more; unless we choose
to abandon the high station on which so lately we were placed by the
resolutions of your predecessors; unless, without motive and contrary
to duty, and interest, and reputation, we recede in the path of improve-
ment which we ourselves have traced, while others to whom we led
the way advance; unless, after having received by anticipation the prize
in the race of reform, we sullenly refuse to proceed and suffer other na-
tions to snatch it from our hands; unless we cease to be intelligent,
great, enlightened and free; cease, in short, to be ourselves, and become,
what Louisianians never can be, regardless of national honour, careless
of the reputation they have acquired, insensible to their own interest.
and the happiness of their posterity; a physical as well as a moral im-
possibility! For nature must counteract her own work, must take
away the high sentiments of honour and patriotism which she has in-
fused in the minds of my fellow-citizens, before they can submit to
any thing that shall derogate from the reputation they have acquired,
or be induced to renounce any undertaking that promises future glory
and happiness to their country.
Therefore, whatever be the trouble, whatever the expense of the
measure, it must be incurred. But the opposers of the system overrate
both. The one has already been considered. It has been shown to be
converted into facility, as to those who have not yet acquired a know-
ledge of our laws: and as to those who have, it is believed that little of
their former acquirement will prove useless, as the system will be
found to contain all those good provisions of the old law, which are fa-
miliar to them, with no other alteration than was required for the ar-
rangement of the work; nothing omitted but what they would not wish
to remember; nothing added but that which was necessary to enforce
the great principle on which this branch of jurisprudence ought to rest;
and, if the earnest endeavours of the reporter have not failed, they will
find at least some order, precision and conciseness introduced, which
cannot fail to facilitate study, aid the memory and lessen the difficulty
of reference in the same degree that the confusion, ambiguity and pro-
lixity which now characterize our laws render these operations difficult.
The expense, as I shall now proceed to show, although nominally of
large amount, is yet balanced by so many advantages even in a pecu-
niary view, as to merit little consideration, and none at all when it is
compared with the least of the evils attending our present state, or of
those greater evils to which they inevitably lead.
The principal expense attending the reform, will be the establishment
of the different prisons, recommended in the fourth code. A schedule to
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INTRODUCTORY REPORT TO
this report, containing the probable cost of erecting those buildings,
with the salaries of the officers and attendants; the expense of food and
clothing for the prisoners, and all the other articles of outlay, calculated
on the most extensive scale that can be required, will show, when com-
pared with the present expenses, much better than any argument, what
additional burthen must be borne by the funds of the state. The mod-
erate amount of which will astonish those who have not calculated the
difference between maintaining a prisoner in idleness, or obliging him
to labour for his subsistence; for it will be found that the saving made
by the latter mode of treatment, calculated on two hundred prisoners,
will very nearly pay the interest of the first expenditure required for all
the proposed establishments.
It is true the sum required must be advanced by the state: but if
their present funds are relieved to the amount of the interest of that
sum, the only present inconvenience is the opening a loan for the prin-
cipal sum, to be repaid at a future day. Before which time the next
and most important pecuniary saving to the state, in the diminution and
prevention of crime, will more than enable the next generation to pay
it;
for it can be shown as nearly to demonstration as the subject is capable
of, that every juvenile vagrant or offender that you educate and reform,
is on an average a saving to the state treasury of more than two thousand
dollars(a), which would be expended under your present system in the
expenses of repeated convictions and maintenance during his successive
confinements; while there is no calculating the unequal tax that he levies
upon particular citizens by his depredations. This subject will be re-
sumed and more fully developed in the introductory report to the Code
of Prison Discipline.
4. I now proceed to the objection to a written code—that although
good in theory it is bad in practice.
So far as this objection is intended to apply to any part of the system
now offered for your consideration, the answer must be deferred until
the details of that system 'come to be examined; here it must be dis-
cussed as an objection to any written code whatever of penal law. This
is a common expression, used most frequently without attaching to it
any precise meaning. It conveys a vague idea of something wrong, and
is employed chiefly to avoid the difficulty of answering cogent reasons.
that are offered for the adoption of any untried measure.
As relates to
the present subject, it is a peculiarly unfortunate argument in this state;
for, as was formerly observed, it is not untried. It is not theory alone.
It is practice in the more difficult branch of civil jurisprudence; and
the facility and success with which that operation was performed, if we
may trust to the strongest analogy, must insure the like results to this.
Having heard under this head nothing but the naked unsupported as-
sertion, a sufficient answer to it would be, that it carries with it its own
refutation; for, if in the terms of the objection, the plan be good in the-
ory, it cannot be bad in practice. A system of laws to be good in the-
ory, must be well adapted to the end proposed(b); must be suited to
(a) A committee of the legislature of New-York, state the case of a prisoner in one of the
penitentiaries, who was first convicted when he was ten years of age, and had been, for re-
peated offences, twenty eight years in confinement. This man alone, at the rate we keep
our convicts, would have cost the state more than five thousand dollars, besides the expense
of removal and conviction.
(b) Lex, bona censeri possit, quæ sit intimatione certa, præcepto justa, executione com
THE SYSTEM OF PENAL LAW.
103
the people they are intended to govern; must be certain, convenient
and constitutional; in short, must be good when reduced to practice.
If the theory fail in any one of those things which are necessary to
put it in execution, it must be supported by bad reasoning. There must
be some fallacy, which, being exposed, would show it to be bad. Such
a theory ought to be assailed, not by asserting it to be good in itself,
but incapable of being executed; which is a contradiction in terms; but
by showing why it cannot be reduced to practice, that is, by showing it
to be a bad theory.
5. The only remaining objection to reducing the laws to writing is this,
that every new system necessarily supposes the use of new terms, and
those must have their meaning settled by judicial decisions before their
import can be understood; that these will create the very uncertainty
which the code is intended to remedy. And in support of this opinion
it is said, that the Code of Justinian, although written, has produced as
many contradictory decisions and as voluminous commentaries as the
common, which is unwritten law; and that the Code Napoleon, though
but of yesterday, groans under the weight of works intended to eluci-
date it. If the terms of the new law are comprehensive, it is said, they
will include more, if precise, less than the legislator intended;
the judge must determine from a wise examinaton of the words, and a
prudent attention to the spirit, what was the real intent of the law.
This has already been done in the common law. Its terms are ex-
plained. The cases which come within, and those which are excluded,
are known.
To unsettle them would create confusion; and therefore,
we had better suffer the inconveniences we have, than fly to others
that we know not of.
There is some truth, but more plausibility, in this argument. It does
not, like others, found itself on popular prejudice exclusively, but has
weight, great weight, with many prudent men, who do not detect the
fallacy of the argument, or perceive how little the facts on which it is
founded, apply to our circumstances. I have some hope of enabling
them to do both; and if the enemies to written law, the partisans of
the jurisprudence of decrees, are driven from this position, I shall be
justified in believing the field clear for a consideration of the merits of
the plan that is now offered.
Before we examine the reasoning we have stated, a preliminary ob-
servation or two is necssary, on the difference between the penal and
civil law, to which last all their facts and all their reasonings apply.
Civil law, from its nature, must govern all cases that may arise in the
infinite series of conflicting claims and disputed rights between individ-
uals; claims, which arise from the ambiguity or silence of the laws;
rights, which are created by the continual changes that occur in the state
of society, in commerce, in the arts. Criminal laws, on the contrary,
are infinitely more contracted in their operation: emanating from the
sovereign will, they admit of no alteration but that which it declares.
Neither society, nor commerce, nor the arts, in all their progressive or
retrograde movements, be they ever so rapid or important-not even
political events, be they ever so destructive of civil associations, can
have the slightest effect on the penal law. They may call for changes,
moda, cum forma politiæ congrua, et generans virtutem subditis. Bacon was not a vain the-
orist.
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but can produce none. That law lives in itself, and can neither be
changed or modified, so as to be accommodated to any of those circum-
stances, but by positive legislation. What the law forbids, is an of-
fence; but the law cannot forbid without being perfectly intelligible,
"incertam si vocem det tuba, qui se parabit ad pugnam ?-incertam si
vocem det lex, qui se parabit ad parendum?" The trumpet may sound
for ever, but no one prepares for battle unless the appointed signal be
given. The laws may speak, but can never be obeyed unless they are
understood.
An ambiguous penal law, is no law; and judicial decisions cannot ex-
plain it without usurping authority which does not belong to them. To
extend the law to a case that does not come within the plain meaning
of its words, is to make a new law. Nothing, it appears, can be clearer
than the reasoning which shows this. Suppose a law should pass, de-
claring that if Peter left the state, his property should be forfeited. To
declare, by a judicial decision, which of the many men bearing that
name was meant, would certainly be a new law; because the individ-
ual really intended could have no notice that the law applied to him
there was no intelligible prohibition; the law gave an uncertain sound
and he could not prepare himself to obey.
;
If it
Not quite so in civil law. Its office is to prevent individual rights
from being infringed, or to grant compensation for any encroachment
upon them; and in doing this, there is an absolute nesessity of deciding
on cases not previously provided for by positive law; in other words,
there must be a power of construction, for this plain reason, that which
soever way the judge decides, his sentence affects private right.
were a right claimed under colour of a positive law, and supposed to be
created only by it, and that law were ambiguous, the same reasoning
would apply in civil that we have used in criminal cases. The obligation
to respect that right, in such case, having no other origin but the positive.
law, if that were uncertain, the defendant against whom it was claimed,
not having any intelligible notice of the duty required of him, could
not be constrained either to perform it or to make compensation for
omitting it; and the decree must be against the plaintiff, in the same
manner as it would be against the state, on a prosecution under an am-
biguous penal statute. But in the decision of ordinary questions this
is far from being the case; there, as has been said, the judge must de-
cide, and his decision must establish a right. Take the common oc-
currence of a suit on a contract of sale, where the defence is concealment
or fraud here the judge, in deciding for the defendant, takes away the
apparent right of the plaintiff to recover on his contract. In giving
judgment for the plaintiff he determines, the facts being conceded, that
the concealment is not of sufficient importance to vacate the sale.
the case be a new one, he must decide without positive law; he must
frame his judgment by analogical reasoning from the law in similar
cases; and if it be correctly drawn it will be respected for its wisdom,
and abridge, by its adoption, the labour of further investigation in sub-
sequent discussions of analogous cases. Thus the jurisprudence of de-
crees, or the authority of precedent, is by degrees established in civil
cases; first, from the necessity of deciding between conflicting claims,
and afterwards from the very great advantage of having settled and fixed
principles, stare decisis being a maxim that usurps the place of regular
legislation; but its misfortune, like that of all other illegitimate power,
If
THE SYSTEM OF PENAL LAW.
105
is this, that its authority is uncertain and vacillating; it is law, or not
law, according to the discretion or passions of subsequent judges, of
which hundreds of examples might be given, more striking than the
one herein before referred to.
The effectual and obvious remedy, of a periodical legislative review
of these decisions, for the purpose of incorporating any new and conve-
nient principles they may establish, under their proper heads, in the
frame of a code previously made, and thus giving them the stamp of
legal authority, has not, it seems, ever yet occurred to any legislator; yet
it is an effectual mode of clothing judicial wisdom and experience with
legislative authority, and making that law, which, under our con-
stitution, cannot but be considered as an encroachment. From this
glance at the nature, rise, and progress of the law of precedent, and
the hint at one of its many evils, with the remedy suggested for it, it will
appear, first, that although there is an apparent necessity for giving
some authority to decisions in civil cases, there is none in criminal;
secondly, that this necessity is only apparent even in civil cases, and
arises from the negligence of the legislative branch, to assert its rights
and perform its constitutional duties; thirdly, that any construction
which a court can put on the terms of a penal law, must either give
them an operation different from that contained in the plain obvious
meaning of those terms, or it must be in conformity with such plain
meaning, and then it follows conclusively, that, in the first instance, it
would be improper to give the authority of law to such construction,
and in the last it would be unnecessary; fourthly, that if a penal law
have no such plain obvious meaning in its terms, it is deficient in an
essential requisite to its very existence, and can have no sanction.
These deductions all relate to decisions on the text of those laws
which impose a penalty for their contravention. But there are other
questions in criminal law, relative to evidence and procedure, in which
all the care that may be employed to provide for their solution, will
be found insufficient. To these all that has been said on the subject of
precedent in civil cases applies; and it will be found that means are
pointed out to give to every judicial decision, on these points, the force
of law, whenever, after a legislative discussion, they shall be found to
be correct. Add to this, that especial care has been taken, in framing,
the new code, to preserve the terms now in use, where the same sense
could, consistently with the order of the work, be applied to them; and
that whenever new terms are found to be necessary, or old ones have
a new or more precise signification annexed to them, they are fully ex-
plained in the Book of Definitions; and then from a consideration of
the whole subject, it will be found, that the objection is more plausible
than well founded; and that if any decisions are necessary to explain
the terms of the new system, they will be much less numerous, and
will have greater authority, and can be learned at less expense either of
time or money, than those which are still necessary to elucidate the
dark parts of our present laws. The argument drawn from the num-
ber of commentators and contradictory decisions on the two written
codes, those of Justinian and Napoleon, is plausible, and of course very
commonly used; but it has little weight even against a civil, much
less against a penal code. And, among many other reasons that might
be urged in a dissertation on the subject, for this conclusive one, that
both those codes contain the radical fault, of admitting a recourse to an
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INTRODUCTORY REPORT TO
authority beyond that of the codes themselves. The authority of the
emperor in the Latin and usage in the French system. The best code
that can be provided, is but a frame-work on which a better is to be
constructed. It must provide for its own progress towards perfection;
but it provides for its own corruption and final destruction, if it admits
judicial decisions, unsanctioned by law, to eke out its deficient parts, to
explain what is doubtful, or to retrench what may be thought bad. The
remedy is easy, efficacious, if it succeed; innocent, if, contrary to all
reason, it should fail. It will be found at large in the project of a law
for adopting these codes; and it is confidently believed, its operation
will show that there is no more force in this last objection than in
those which preceded it.
I
Enough, I hope, has been said to clear the ground of the general and
indefinite objections that have been raised to the reformation which
was so wisely directed by a former legislature: enough, and more
than enough to justify them and their enlightened successors.
have spoken on these subjects with a confidence that might justly be
taxed as presumption, if they were my own opinions only that I ex-
pressed; but I am strong in their wisdom, and bold in the assertion of
principles which they have sanctioned.
I am now about to approach different ground, and to enter upon the
discussion of the different provisions of the system, with very different
feelings. So far as concerns the general principles on which they were
directed to be formed, I feel the same confidence, for I am supported
by the same authority. But in examining how well these principles
have been reduced to the form of practical precept, I cannot but feel a
diffidence which the uncertainty of receiving the same approbation
naturally creates; though even this is lessened by a consciousness of
having exerted every faculty, in the endeavour to make the work
worthy of those who directed it, and a blessing to those for whose use
it was designed. Before I enter upon this discussion, however, and
come to the consideration of the provisions of each particular code, it
seems proper that I should conclude these general introductory remarks,
with some observations on the characteristics of the whole system,
which, although they may have been incidentally adverted to else-
where, yet merit more particular attention, on account of their novelty,
and, as it is also thought, of their importance.
The legislature of Louisiana has given the first example of proclaim-
ing to their constituents and to the world, the principles by which
they would be guided in the great work of penal legislation. A very
short law contained these principles, concisely, but clearly declared to
be the basis of the code which they directed to be prepared. These
were developed in a subsequent report; and both, translated into dif-
ferent languages and published in different countries, have excited
an interest abroad which certainly would not have been created by
any ordinary change in the jurisprudence of a small and distant state.
Nor was there any thing in the report that could account for the
attention it has received. The style is not marked by any peculiar
excellence, and most of the arguments it contains had been before
used and urged with better method and greater force. What then
is it that has attracted the attention of the statesmen of Europe to the
legislation of one of the least states in our union; and of its jurists
and men of letters to a pamphlet, which has no other merit than
THE SYSTEM OF PENAL LAW.
107
that of containing true principles, simply stated, and elucidated with-
out the aid of eloquence? It is the novelty of hearing governors,
for the first time, addressing the people in the language of reason, and
inviting them to obey the laws, by showing that they are framed on
the great principle of utility! It is the imposing spectacle exhibited
by a nation, already freed from the shackles of political servitude,
bursting those which the prejudice of ages had riveted on the mind!
It is the surprise occasioned by the simplicity, and case, and safety of an
operation, which ignorance and interest had represented as perplexed,
dangerous, and difficult! Other rulers have sometimes deigned to ex-
plain the motive for making a particular law. Ours alone have offered
a general system to the consideration of the people; and told them, not
only that it was expedient, but explained why they thought it so; in-
vited them to reflect as well as to obey; made their precepts lessons of
pure morality as well as of law; and showed that, consistent with the
public good, they never can be separated. They say to them, for the
first time in the history of jurisprudential legislation-"We are about
to frame rules for your government, in your various relations to each
other and to your country. Those, by which you and all other nations
have been bound, have hitherto been couched in language only under-
stood by a few, who naturally made a property of their knowledge.
All mystery is now at an end. Here are the laws, and here are the
principles by which we were guided in framing them! Judge whether
the principles are correct! Determine whether we have conformed to
them! It has been said by those of old, sic volo, sic jubeo, stet pro
ratione voluntas-obey the law because it is written; but we say unto
you, obey the law because it is just, because it is for your benefit, be-
cause the principles on which it is founded are wise! The law has its
source, not in our will, but in reason, truth, justice and utility of
all which our will is only the organ and the record. When you find
that we promulgate precepts not consistent with their dictates, although
they must be obeyed while they are in force, yet the evil is remedia-
ble, for with the law, we give you the rule in conformity with which
it was intended to be made. If, then, the rule be bad, or the law be
not conformable to it, the remedy is in your hands: dismiss us and
repeal our law." It is the unprecedented nature of this frank, simple
language that distinguishes your projected code, and that makes it an
object of curiosity and interest; a theme for argument; and possibly, a
model for imitation in its leading characteristics.
Another peculiarity in the plan now presented is, that it is a system
of which all the parts are connected with, and bear upon, each other.
All the written criminal codes hitherto established have been defective
in this particular. With those of Draco, Solon and Lycurgus we are
not sufficiently acquainted to say more, than that the fragments of them
that have descended to us, do not justify a belief that they contained
any thing more than a few arbitrary enactments, assigning particular
punishments to designated offences, without any provisions for prevent-
ing the latter in any other way than by the terror of the former, with-
out any rules of procedure, and mingling together, without order, the
civil and criminal branches of jurisprudence. The same characters may
be given of the laws of the Twelve Tables; and even that wonderful
collection of human wisdom and foresight, to which modern nations still
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INTRODUCTORY REPORT TO
have recourse for the best principles of distributive justice, the body of
the Roman Law, was wofully deficient in the arrangement which ought
to draw the line between civil and criminal law. The laws of the Par-
tidas in some measure correct this evil; but although the criminal code
is there thrown into a separate division, yet penalties are profusely
scattered among civil remedies; and these latter are often found usurp-
ing the place of punishments.
Of modern codes, the Russian, Prussian, Tuscan and Imperial are
more or less liable to the same reproach, but the penal code of Napo-
leon in a great degree avoids it. This defines offences, and a code of
procedure directs how offenders shall be tried and punished, but here it
stops. Yours, on the contrary, in addition to the enunciation of prin-
ciples on which I have already remarked, contains the further essentials
to a complete plan, a code of evidence and a book of definitions. The
book de verborum significatione in the code of Justinian, is somewhat
analogous to this last feature in yours, but it differs in this, that the
whole body of the Roman law being only a digest or compilation.
of those before in force, the words in which it is expressed were those
originally employed, and being the work of different hands, these words
were retained, and the book in question was added as a kind of lexicon
to explain them. Your code being an original work, the reporter was
not restricted in his selection of terms, and when those he used were
susceptible of more than one signification, or were in their general use
uncertain or ambiguous, he was at liberty to annex to them a precise
signification, taking care that, in the course of the work, they should be
used in no other. The great utility of this part of the system is obvious,
provided it has been executed with the necessary precision. It is
that part which has been found the most difficult. The most intense ap-
plication was necessary to define terms the most commonly used, but
to which many of those who employed them affixed ideas more or less
materially different. This difficulty is increased by the nature of the
language, which very frequently does not afford terms sufficiently
precise to avoid difficulty, even in the periphrase used in the definitions,
so that in many instances I have been under the necessity of defining
the words employed to explain others. And, in order to approach
nearer to that certainty so necessary in all laws, recourse has been had
to corollaries, examples, and illustrations, as well in the body of the
law, as in the book of definitions. This is also a new feature in legis-
lation, and like many others that had not yet received the sanction of
experience, it was made the subject of solicitous reflection before it was
adopted. An author whose maxims in law and legislation are entitled
to the higest respect(a), and whose rules I have more than once taken
as my guide, has said that the lawgiver ought not to reason, but com-
mand: the false construction usually put upon this precept need not
now be examined, here it will only be necessary to say that the illus-
trations alluded to are not reasonings, and therefore do not contradict
the maxim; they do not purport to give the reason of the rule, but to
show clearly what it is. Sometimes this is done by enlarging, some-
times by restricting, and sometimes by the elucidation of example, but
all are only so many amplifications of the rule in the text; all are pre-
(a) Bacon.
THE SYSTEM OF PENAL LAW.
109
cepts. The lawgiver takes upon himself that part of his duty which
has heretofore been improperly devolved upon the judge: the law as it
now stands gives the simple precept, the judge makes the deductions;
he declares how far the law is intended to extend, what classes of cases
do not come within its purview. If language furnished words suf-
ficiently numerous to express every idea, and sufficiently definite to
admit of no other construction than the one intended, the legislative
function would end with a simple exposition of its will in the requisite
terms; but unfortunately this is not the case. Languages were formed
in the infancy of society, and of course would contain terms commensu-
rate only with the few wants and simple ideas, prevalent in that state of
society. As the necessity for other words increased with advancement
in civilization, the supply was furnished either by periphrase, by figu-
rative language, by adoption of words or phrases from other tongues,
and, in very few instances, by the creation of new terms-all of these,
except the last, the fruitful sources of amphibology and doubt. This
is not the place to enter into a discussion of the philosophy of language,
but it was necessary to advert to the source of this difficulty, in order to
show that from this defect in every language, the lawgiver could, in
none, find terms sufficiently precise for the expression of his will, in all
the cases which might occur. And therefore, although the avowed object
of every legislator was certainty, yet in the body of all laws, sometimes
from the negligent or unskilful use of the language, sometimes from
its internal defects, the legislative intent is so uncertain, that the chief
employment of the judiciary power has been, not its proper function
of ascertaining facts and then applying to them the provisions of a
known law, but in the legislative task of declaring what the law is.
Good laws, expressed in precise language, would destroy this confu-
sion of powers.
Such laws admit of but one interpretation, or,
more correctly speaking, they admit of none. The judiciary power
has nothing to do but to ascertain facts, and direct the execution of the
law in the particular cases which warrant it. But when the fact is ascer-
tained, and the question is, whether it comes within the purview of a
law which does not apply to it in terms, or whether, although it is
embraced by the letter of the law, it shall be excluded from its ope-
ration—the decision is surely a legislative act, because it must either
extend the words so as to embrace the case, or restrict them so as to
exclude it. But the extending a statute or restricting it is as clearly a leg-
islative act as the passing of the statute was; a particular legislative act
as respects the case under consideration; a general one, by the doctrine
of precedent, as respects all others. Yet this duty has devolved upon
the judiciary, even in countries where the division of the several depart-
ments is a fundamental principle; so much so, that the abuse has become
the rule; and it is as commonly said that the office of the judge is to
interpret the laws, as that it is his duty to apply them.
To avoid misapprehension, let it be clearly understood, that in no
part of this system is the judge inhibited from resorting to all the means
which grammatical construction, the context of the law, the signification
usually given to the words employed, or their technical meaning in re-
ference to the subject matter, will afford for discovering the true sense
of the act. This operation must of necessity be performed. It is di-
rected by the text of the code, and indeed is so unconsciously peformed
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INTRODUCTORY REPORT TO
in the common intercourse of life(a) that it cannot be called an inter-
pretation. That which is reasoned against here, and forbidden by the
code, is not the application of the rules of grammar and common sense
to discover from the language of the law what it intends; but the en-
croachment on the legislative functions begins, when judges talk of
distinctions between the letter and the spirit of the law, and forget the
limits of their authority, so far as to supply omissions and retrench su-
perfluities in statutes. I know that the inaccurate language of many
statutes, has, in several cases, reduced the judge to a kind of necessity of
exceeding his constitutional powers, because the legislator has neglected
his, and thus furnished a plausible excuse for this encroachment, and I
acknowledge, that for the most part, it has been beneficially, or at least,
not oppressively exercised. But it is not the less an encroachment. In
England it is part of the common law that judges should exercise this
power. But that part of the common law which regulates the distribu-
tion of fundamental powers, is the constitution; therefore the exercise
of this power, is there a constitutional right. In the state of Louisiana
on the contrary, it is no part of our constitution-it is expressly for-
bidden by that instrument. If the act of declaring to be law, and en-
forcing as such, something which the legislature has not prescribed, or
declaring that what they have prescribed shall not have the force of law,
under whatever pretexts such acts be done, be the exercise of legislative
powers; then is the act of enlarging or restraining the words of a stat-
ute, by a constructive reference to its spirit, expressly forbidden by our
constitution, which directs, both in affirmative and negative terms, not
only that the three great departments shall be kept separate, but that
no person invested with one of these powers shall exercise the functions
of either of the others. What, then, is our remedy for the evil of am-
biguous laws? The judges cannot, as in England, supply it. The
legislature must eradicate the mischief, instead of suffering it to be tam-
pered with by the quackery of judicial legislation. Laws must be
brought back to their original simplicity. They must be expressed in
purer terms when the language affords them, and when no others can be
found but such as admit of a double sense, they must be explained by
a periphrasis, elucidated by examples. The exceptions intended must
be stated, the true deductions made, and such false conclusions as are
apprehended, expressly negatived. This is what has been attempted
to be done by the feature in the code now under consideration. If
the attempt has been only partially successful, it cannot, it is believed,
be doubted that the law will be better understood by this course; be-
cause it is precisely in this way that the advocates for the jurisprudence
of decrees contend that the law is better elucidated by the court-every
precedent is but an example-every decision it contains is a deduction
from the text of the law, declaring affirmatively what is, or negatively
what is not, its intent; and those who say that this task can be well
(a) Instances of this are scarcely necessary. "John fell upon Peter and bruised him se-
verely." If the context shows that they were travelling together in a carriage which was
overturned, we shall have one sense of this phrase; if it informs us that they were quar-
relling, we shall have another. The instantaneous operation of the mind in connecting the
phrase used with the preceding matter can scarcely be called an interpretation, though the
words themselves may convey very different ideas.
THE SYSTEM OF PENAL LAW.
111
performed, long after the law has been made, by judges who had no
agency in making it, cannot deny that it may be better done at the time
of giving the law, by the legislator from whom it emanates, who may
reasonably be supposed best to know his own intentions. If after hav-
ing expressed his will in general terms, he should find, on reflection,
that the words he has employed will admit of several constructions, one
of which only he intends to enforce; if he should find that after settling
the direct application of the law, deductions may be made from it, which
he did not intend to allow; if, from certain false reasonings which have
prevailed, or which circumstances induce him to fear may prevail, he
is inclined to apprehend that his law will not be applied to the cases he
intended; or, lastly, although he intends that his law shall apply gene-
rally, if he should find there are certain cases which he desires to except
from its operation, what, under such circumstances, is it the part of a wise
legislator to do? To devolve upon the judiciary the task of expressing
his real intent, of making his deductions, stating his exceptions, and
giving to his law all the extension and restriction which it was his ob-
ject to effect? Or to perform, as far as may be practicable, his own duty?
The only reasonable answer that can be given to this inquiry would
justify the course that has been taken. It is scarcely necessary to reply
to the objection, that after all the elucidation that can be made, the law
may be obscure; after all the care that can be taken, it may be imper-
fect;
after all the cases that can be foreseen, others will be found to
have been omitted. No duty of society, moral or religious, would be
performed, if we were deterred by such arguments. Yet, strange as it
may appear, this fallacy has its effect, and we submit, particularly in
jurisprudence, to oppressive absurdities, because no remedy can be
proposed for removing them, that does not bear the mark of all human
institutions, that of having some defect or inconvenience attached to it.
But, although new in the simplicity of its form, this feature of the code.
is not entirely so in substance. It takes the place, advantageously it is
hoped, of the loose preambles formerly used, and in some instances re-
tained in our legislation; of the provisions exempting particular sub-
jects from general enactments; and in a great measure supersedes the
class of statutes whose titles, an act to explain, an act entitled, an act
to amend, an act in addition to, an act to repeal, an act, &c., were a
puzzle, and the references of which, from one statute to another, were
as difficult to trace as the most involved table of descents.
The Introductory Reports to the several Codes of crimes and punish-
ments, of procedure, of evidence, and of reform and prison discipline,
which compose this system, will be found to contain a notice of the
changes in our present law, on those subjects respectively which are
proposed, and the reasons at large for introducing them. They will
be longer and more argumentative, as this has been, than would have
been necessary, if, still a member of your honourable body, I could
meet objections as they are raised, and make the corrections which your
superior wisdom would suggest. Having offered nothing without re-
flection, I have reasons for all I have proposed. Many of them, pro-
bably, will be found insufficient to support my conclusions, but those
conclusions are honestly if not wisely drawn, and the system which
they support is submitted in the full confidence that it will receive a
air, a full, and a deliberate consideration. Fair, without prejudice
112
INTRODUCTORY REPORT, &c.
against the reporter for the opinions he may entertain on other subjects,
or against his doctrines for their novelty; full, after a consideration of
the whole system and the bearing of its different parts on each other;
deliberate, without rejecting any one provision, until the reasons for
proposing it have been maturely weighed and its probable effects cal-
culated. A decision thus made must be wise, and will doubtless prove
satisfactory to your constituents, and honourable to your country and
yourselves.
INTRODUCTORY REPORT
TO THE
CODE OF CRIMES AND PUNISHMENTS.
AFTER noticing and accounting for some variations in the arrange-
ment of the work from the original plan, and giving a slight reference
to some of its leading principles, it is proposed in this report to review
the CODE OF CRIMES AND PUNISHMENTS, examine the principal changes
it purports to make, and offer the reasons on which they are founded.
By the Report on the Plan of a Penal Code(a) made in 1822 it was
proposed to comprise the whole system of penal law in one code, giving
a separate book to each of the four divisions-crimes and punishments,
procedure, evidence, and reform and prison discipline, and to appro-
priate another to the definition of the technical terms used in the body
of the work. It was, however, soon discovered, that, by this arrange-
ment, the subdivisions of titles, chapters, sections, and articles, would
not be sufficiently numerous for preserving order in the distribution of
each of the several great divisions; by throwing them into distinct
codes, an additional great division was gained, and an easier mode of
reference procured. Each of those great divisions, therefore, in the
system now presented forms a separate code, and the book of definitions.
is a kind of appendix to all, and preserves the form originally given to it.
This is merely a change of form. But there is also a material addi-
tion in point of substance: two institutions are provided for in the
code of prison discipline, under the titles of the School for Reform
and the House of Detention, which were only incidentally referred
to in the original report; the necessity for which is fully explained in
the introductory report to that code. With this variation and these
additions, the plan contained in the report, which received the sanction
of the legislature, has been strictly pursued.
Most of the reflections which would find their place in a general
view of the system, have been either anticipated in the report, or will
so readily occur to the members of the General Assembly, that it would
be abusing their indulgence even to advert to them here. There are
some, however, of such importance that they cannot be totally omitted;
but in discussing them, all arguments formerly used will either be
carefully avoided, or referred to no further than is deemed necessary
(a) Report on the Plan of a Penal Code, p. 6.
P
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INTRODUCTORY REPORT TO
for the understanding of any new course of reasoning, or the applica-
tion of any new facts, that may be introduced.
At our entrance on the subject we are met by the difficulty of dis-
covering the true theory of penal law. Philosophy must point it out,
for it depends on a deep investigation of the faculties of the human
mind, and of their usual employment; and wise legislation must adapt
it to the use of mankind. At no preceding period has the science of
jurisprudence, and more particularly penal jurisprudence, attracted
such close attention as at present. At no period has the progression I
have referred to, from theoretic truth to practical utility, been more
apparent, or promised more important and beneficial results. Learned
and good men are directing their time and talents to the subject; and
in the intellectual conflict which this interesting discussion has pro-
duced, it is highly gratifying to observe, that the principles which you
have sanctioned have been confirmed by the best opinions, and sup-
ported by the most conclusive arguments. Even those who disagree
on other points, unite in approving the general doctrines on which you
have directed your code to be prepared; although, as might be ex-
pected, they differ in the conclusions that may be drawn from them,
and refer their authority to different sources. Thus, while all agree
that the true end of penal jurisprudence is to prevent crimes, and that
the doctrine of vindictive law is in the highest degree absurd and unjust,
some insist that crimes are to be repressed only by the example of pun-
ishments; others, that reformation is the only lawful object. Some re-
fer the right to punish to an implied contract between society and its
members; others, to the principle of utility alone; and there are those
again who admit of no other standard than abstract justice. Each of
these has its partisans in the conflict. Without entering into the ab-
stract reasoning to which they lead, we may content ourselves with
this important result :-that whether the right to punish be founded on
contract, or utility, or justice; whether the object be to punish or re-
form; whatever be the true doctrine on either of these subjects, we
have the satisfaction to know, that by a singular felicity, if either the-
ory be right, the practical results we have drawn from our reasoning
cannot be wrong, for all the provisions of our system coincide with
abstract justice, with general utility, and with the terms of any suppos-
able original contract; and whether reformation, or punishment, be
the true means of preventing crimes, our plan of prison discipline will
effect the end, for it embraces both.
If upon a critical examination of the system proposed to you, it
should be found to have this extraordinary adaptation to principles that
have been considered as discordant, it will certainly go far to prove
that the theoretic disputes have turned more upon terms, than on any
real difference between them. For instance, if the supposed social
contract ever existed, the foundation of it must have been the preserva-
tion of the natural rights of its members. And this makes it, in all its
effects, the same as the theory which adopts abstract justice as the basis
of the right to punish; which, properly defined, is only that which
secures to every one his right; and if utility, the remaining source to
which this power is referred, be found to be so closely united with
justice, as in penal jurisprudence to be inseparable, it will follow that
any system founded on one of these principles, must be supported by
the other.
In the same manner, as to the means for attaining the object common
THE CODE OF CRIMES AND PUNISHMENTS.
115
to all, the prevention of crime, if the most efficacious punishment is
that which also best produces reform, then the several theories are
reconciled in practice, however they may differ in the arguments they
use.
It has therefore been thought more proper to abstain from entering
the lists of controversy with either of the disputants, and to adopt, im-
plicitly, the tenets of neither school; but to be content with uniting, if
we can, the suffrage of all in the practical results we shall establish..
There is, however, one of these results, which, although clearly dedu-
cible from the first principles established by all, is not yet generally
admitted in practice; that feature which so honourably distinguishes
from the existing laws of any other nation, the plan your predecessors
unanimously approved, and which has been one exciting cause of the at-
tention which the European world is now giving to the subject: you may
easily imagine that I mean the abolition of the punishment of death.
Seldom has any doctrine made such rapid strides as this has in public
opinion. Although opposed by inveterate prejudices, long habits, mis-
taken religious opinions, and the general indefinite fear of innovation;
yet its proselytes are becoming every day more numerous; the example
of our state is every where quoted; the future measures of its legisla-
ture are expected with the greatest interest; and the final abolition of a
punishment, repugnant to our natures, is expected from you with con-
fidence, not unmixed with anxiety, by the whole civilized world. An
enlightened citizen of Geneva(a) has published proposals for a prize
(a) Mr Sellon, member of the sovereign representative council of Geneva, as early as
1816, proposed to the Council to abolish the punishment of death; and in 1826 he offered
the prize referred to in the text. In his proposals, after citing the opinions of Beccaria and
Bentham, he adds-" I finish these observations by producing a document the most recent
and the most conclusive in favour of my proposition. It is the accession of the general as-
sembly of Louisiana to the principles laid down by Mr Livingston in his report. My fellow
citizens will there see a republic adopting dispositions, of which the principal one is, the
absolute suppression of the punishment of death." He then gives a copy of our law of
1820, the certificate of my appointment, all that part of the report relating to the punishment
of death, and the resolution approving of the report. In a note on the law,
he says,-
Having no other object in this writing than to convince my fellow citizens that the aboli-
tion of the punishment of death would be a measure both useful and honourable for my
country, I have thought that this end could not be better attained than by making them ac-
quainted with the report of Mr Livingston, made to the general assembly of Louisiana.
Louisiana is a republic. It is a component part of an illustrious union, as we form part of
the Swiss confederation; and the constitution of the United States, as well as our federal
act, permits the members to provide for themselves the best laws, even when they differ
from those of the other states. We owe to Mr Taillandier the translation of this report," &c.
And he concludes his programme by citing the examples of modern nations, in which this
abolition has been carried into effect. 1. Russia, under Elizabeth. 2. Tuscany, under Leo-
pold. 3. "Louisiana, in America, which, on the report of Mr Livingston, by a solemn
resolution of the sovereign assembly, has decreed the absolute suppression of this punish-
ment. This report, in which it will be seen that the author has collected all the experience
of the past and present times*, appears to me to be a document of the greatest interest for
Geneva, whose position, population, and constitution, have a great resemblance to those of
*He who can accuse me of vanity in making this and similar citations, is incapable of
comprehending how utterly this miserable boyish feeling is incompatible with the frame of
mind necessary for the consideration of subjects on which the happiness of a nation may
depend. Feeling myself superior to such suspicions, I shall not sacrifice any thing that I
think may promote the great object, to the fear of incurring them.
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Essay on the subject, in which the arguments for the abolition which
have been approved by this state, are copied as a text. A society in
Paris has followed the example. The several periodical papers of
France, England, Germany, and Holland are filled with disquisitions
for the most part highly approving of the plan of abolition; but none,
as far as I have perceived, even of those who doubt its success, dis-
couraging the experiment as a dangerous one.
If this principle is retained in our code, it dates back to the vote of
approval, and secures to us a name among nations to which our relative
population or strength would not, for ages, have entitled us; a distinc-
tion more honourable than any that wealth or power or advancement
in any other science could give-and I need not observe to the en-
lightened body I address, how much of that distinction possessed by a
country is reflected back upon its citizens; and in what degree, while
they promote the honour of the nation, they augment the happiness of
the individuals who compose it. It is the firm persuasion that both
will be increased, in an incalculable degree, by the measure in ques-
tion, that induces ine to press it again on the consideration of the legis-
lature, and to add a very few reflections to the arguments which were,
on a former occasion, considered as conclusive. I then(a) expressed
an opinion that the right to punish by death, might be established in
cases where the importance of the object to be obtained, and the ne-
cessity of inflicting it in order to attain that object, could both be suffi-
ciently shown; but my argument denied the existence of such necessity.
On reviewing that part of the report, I think it requires some elucida-
tion.
Existence,
Existence was the first gift of Omnipotence to man.
accompanied not only by the instinct necessary to preserve it, and to
perpetuate the species, but with a social (not merely a gregarious) dis-
position, which led so early to the formation of societies, that unless we
carry our imagination back to the first created being, it is scarcely poss-
ible to imagine, and certainly impossible to trace, any other state than
that of the social-it is found wherever men are found, and must have
existed as soon as the number of the species were sufficiently multiplied
to produce it. Man, then, being created for society, the Creator of
man must have intended that it should be preserved; and as he acts by
general laws, not by special interference, (except in the cases which
religion directs to believe), all primitive society, as well as the indivi-
duals of which it is composed, must have been endowed with certain
natural rights and correspondent duties, anterior in time, and paramount
in authority, to any that may be formed by mutual consent. The first
of these rights, perhaps the only one that will not admit of dispute, is
as well on the part of the individual as of the society, the right to con-
tinue the existence given by God to man, and by the nature of man, to
Louisiana, which member of a federation, as Geneva is, has given to itself good laws without
consulting her neighbours on the subject, giving them a noble and wise example to follow,
and not fearing that a mild legislation would attract criminals. It is to be hoped, that this
example will be followed by us." And he adds," It is easy to make this experiment. All
the world will approve it. The glory will be reflected on the whole nation, and history will
certainly make honourable mention of the people which shall first renounce a practice no
longer required by necessity, which alone could excuse it."
(a) Report to the Plan of a Penal Code, p. 31.
THE CODE OF CRIMES AND PUNISHMENTS.
117
the social state in which he was formed to live: and the correspondent
mutual duty of the individual and of the society is to defend this right;
but when the right is given, the means to enforce it must, in natural
as well as positive law, be admitted to be also given. If then both
individuals and the society have the right to preserve their several ex-
istence, and are, moreover, under the reciprocal duty to defend it when
attacked, it follows, that if one or the other is threatened with destruc-
tion, which cannot be averted but by taking the life of the assailant,
the right, nay more, the duty to take it exists: the irresistible impulse
of nature indicates the right she has conferred, and her first great law
shows that life may be taken in self-defence.
It is true the aggressor
has the same right to exist; but if this right were sacred while he was
attempting to destroy that of another, there would be co-existing, two
equal and conflicting rights, which is a contradiction in terms. The
right, therefore, I speak of, is proved; but both in the individual and
in society it is strictly defensive-it can only be exerted during that
period when the danger lasts, by which I mean when the question is,
which of the two shall exist, the aggressor or the party attacked,
whether this be an individual or the society: before this crisis has
arrived, or after it has passed, it is no longer self-defence, and then
their rights to enjoy existence would be co-existent and equal, but not
conflicting, and for one to deprive the other of it would be of course
unjust.
Therefore, the positions with which I set out seem to be proved.
That the right to inflict death exists, but that it must be in defence,
either of individual or social existence(a); and that it is limited to the
case where no other alternative remains to prevent the threatened de-
struction.
In order to judge whether there is any necessity for calling this ab-
stract right into action, we must recollect the duty imposed upon society
of protecting its members, derived, if we have argued correctly, from
the social nature of man, independent of any implied contract. While
we can imagine society to be in so rude and imperfect a state as to ren-
der the performance of this duty impossible without taking the life of
the aggressor, we must concede the right. But is there any such state
of society? Certainly none in the civilized world, and our laws are
made for civilized man. Imprisonment is an obvious and effectual
alternative; therefore, in civilized society, in the usual course of events,
we can never suppose it necessary, and of course never lawful: and
even among the most savage hordes, where the means of detention
might be supposed wanting-banishment, for the most part, would take
away the necessity of inflicting death. An active imagination, indeed,
might create cases and situations in which the necessity might possibly
exist-but if there are any such, and they are sufficiently probable to
justify an exception in the law, they should be stated as such, and they
would then confirm the rule; but by a perversity of reasoning in those
who advocate this species of punishment, they put the exception in the
place of the rule, and what is worse, an exception of which the possi-
bility is doubtful.
It may be observed, that I have taken the preservation of life as the
(a) This explains the part of the report on the Plan of a Penal Code which relates to the
comparison between the evil of the offence and the punishment.
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only case in which even necessity could give the right to take life, and
that for the simple reason, that this is the only case in which the two
natural rights of equal importance can be balanced; and in which the
scale must preponderate in favour of him who defends against him who
endeavours to destroy. The only true foundation for the right of in-
flicting death, is the preservation of existence. This gift of our Creator
seems, by the universal desire to preserve it which he has infused into
every part of his animal creation, to be intended as the only one which
he did not intend to place at our disposal. But, it may be said, what
becomes of our other rights? Are personal liberty, personal inviola-
bility and private property to be held at the will of any strong invader?
How are these to be defended, if you restrain the right to take life to
the single case of defence against an attack upon existence? To this it
is answered: Society being a natural state, those who compose it have
collectively natural rights. The first is that of preserving its existence;
but this can only be done by preserving that of the individuals which
compose it. It has, then, duties as well as rights; but these are wisely
ordered to be inseparable. Society cannot exert its right of self-pre-
servation without, by the same act, performing its duty in the preser-
vation of its members. Whenever any of those things which are the
objects of the association, life, liberty or property, are assailed, the
force of the whole social body must be exerted for its preservation; and
this collective force, in the case of an individual attack, must, in ordi-
nary cases, be sufficient to repel it without the sacrifice of life; but in
extraordinary cases, when the force of the assailants is so great as to
induce them to persevere in a manner that reduces the struggle to one
for existence, then the law of self-defence applies.
But there may be a period in which individual rights may be injured
before the associated power can interfere. In these cases, as the nature
of society does not deprive the individual of his rights, but only comes
in to aid their preservation, he may defend his person or property
against illegal violence by a force sufficient to repel that with which he
is assailed. This results clearly from the right to property, to whatever
source we may refer it, and from that of personal inviolability, which
is (under certain restrictions imposed by nature itself) indubitably a
natural right. As the injury threatened may not admit of compensa-
tion, the individual may use force to prevent the aggression; and if that
used by the assailant endangers his life(a), the question then again be-
comes one of self-defence, and the same reasoning applies which was
used to show the right of taking life in that case. But where the indi-
vidual attacked can either by his own physical force, or by the aid of
the society to which he belongs, defend himself or his property; when
the attack is not of such a nature as to jeopardize his own existence in
the defence of them; if he take the life of the aggressor, under these
circumstances, he takes it without necessity, and consequently without.
right. This is the extent to which the natural law of self-defence
allows an individual to go in putting another to death. May any asso-
ciation of individuals inflict it for any other cause, and under any other
circumstances? Society has the right only to defend that which the
(a) The existence of danger alone, is not a sufficient justification by the English, nor I
believe by other laws for homicide; it must be a danger from which there is no other means
of escape.
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119
individuals who compose it have a right to defend, or to defend itself—
that is to say, its own existence, and to destroy any individual, or any
other society which shall attempt its destruction. But this, as in the
case of individuals, must be only while the attempt is making, and
when there is no other means to defeat it. And it is in that sense only
that I understand the word so often used, so often abused, so little
understood, necessity. It exists between nations during war; or a
nation and one of its component parts in a rebellion or insurrection;
between individuals during the moment of an attempt against life, which
cannot otherwise be repelled; but between society and individuals,
organized as the former now is, with all the means of repression and
self-defence at its command, never. I come then to the conclusion, in
which I desire, most explicitly, to be understood, that although the
right to punish with death might be abstractedly conceded to exist in
certain societies, and under certain circumstances which might make it
necessary; yet, composed as society now is, these circumstances cannot
reasonably be even supposed to occur-that therefore no necessity, and
of course, no right to inflict death as a punishment does exist.
There is also great force in the reasonings which have been used to
rebut that, which founds the right to take life for crimes on an original
contract, made by individuals on the first formation of society. First,
that no such contract is proved, or can well be imagined. Secondly,
that if it were, it would be limited to the case of defence.
The parties
to such contract could only give to the society those rights which they
individually had; their only right over the life of another, is to defend
their own; they can give that to society, and they can give no more.
In this case also, therefore, the right resolves itself into that of doing
what is necessary for preservation. The great inquiry then recurs
is the punishment of death in any civilized society necessary, for the
preservation either of the lives of its citizens individually, or of their
social collective rights? If it be not necessary, I hope it has been
proved not to be just; and if neither just nor necessary, can it be ex-
pedient? To be necessary, it must be shown that the lives of the citi-
zens and the existence of society cannot be preserved without it. But
can this be maintained in the face of so many proofs? Egypt, for
twenty years, during the reign of Sabaco(a)-Rome, for two hundred
and fifty years-Tuscany for more than twenty-five-Russia (b), for
(a) Diod. Siculus.
(b) As I use no historical fact with a desire that it should go for more than it is worth, it
is but proper to say, that I have never relied so much upon the example of Russia as upon.
the others to which I refer; because, although I have been able to procure no precise infor-
mation on the subject, I am yet inclined to believe, that the punishment of the Knout was
preserved as an equivalent to that of death in many cases, and to death in its most horrid
form. It is thus described by Howard: "I saw two criminals, a man and a woman, suffer
the punishment of the knout. They were conducted from prison by about fifteen hussars
and ten soldiers. When they arrived at the place of punishment, the hussars formed them-
selves into a ring round the whipping post. The drum beat a minute or two, and then some
prayers were repeated, the populace taking off their hats. The woman was taken first; and
after being roughly stripped to the waist, her hands and feet were bound with cords to the
post, a man standing before the post to keep the cords tight. A servant attended the exe-
cutioners, and both were stout men. The servant first marked his ground and struck the
woman five times on the back. Every stroke seemed to penetrate deep into the flesh. But
his master thinking him too gentle, pushed him aside, took his place, and gave all the re-
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twenty-one, during the reign of Elizabeth-are so many proofs to the
contrary. Nay, if those are right who tell you that the penal laws of
Spain were abrogated by the transfer, this state itself gives an unan-
swerable proof that no such necessity exists; for if those laws were not
in force, it is very clear that there were none imposing the penalty of
death, from the time of the transfer in December 1803, to the 5th of
May 1805, when our first penal law was passed. Yet during that
period, when national prejudices ran high, when one government had
abandoned and the other had not yet established its authority, there
was not, I believe, a single instance of murder, or of any attempt to
destroy the order of society. So that one argument or the other must
be given up. Either the Spanish laws existed, or we ourselves furnish.
a proof that a nation may exist, in peace, without the punishment of
death. Societies have then existed without it. In those societies,
therefore, it was not necessary. Is there any thing in the state of ours
that makes it so? It has not, as far as I have observed, been even
suggested. But if not absolutely necessary, have its advocates even
the poor pretext that it is convenient; that the crimes for which it is
reserved, diminish under its operation in a greater proportion than
those which incur a different punishment? The reverse is the melan-
choly truth. Murder, and those attempts to murder which are capi-
tally punished, have increased in some of the United States to a degree
that not only creates general alarm, but by the atrocity with which
they are perpetrated, fix a stain on the national character which it will
be extremely difficult to efface. I might rely for this fact, on the gene-
ral impression which every member of the body I address must have
on this subject; but as the result is capable of being demonstrated by
figures, I pray their attention to the tables annexed to this report, in
which, although they are far from being as complete as could be wished,
they will see an increase of those crimes that demonstrates, if any thing
can do it, the inefficiency of the means adopted and so strangely per-
sisted in, of repressing them. The small number of executions com-
pared with the well authenticated instances of the crime, shows that
the severity of the punishment increases the chance of acquittal; and
the idle curiosity which draws so many thousands to witness the exhi-
bition of human suffering at the executions; the levity with which the
spectacle is beheld, demonstrates its demoralizing and heart-hardening
effects;
while the crimes committed at the very moment of the example
intended to deter from the commission, shows how entirely inefficient
it is. One instance of this is so remarkable that I cannot omit its de-
tail. In the year 1822 a person named John Lechler was executed at
maining strokes himself, which were evidently more severe. The woman received twenty-
five and the man sixty. I pressed through the hussars, and counted the number as they
were chalked on a board. Both seemed but just alive, especially the man, who had, how-
ever, strength enough to receive a small donation with some signs of gratitude. They were
conducted back to prison in a little wagon. I saw the woman in a weak condition some
days after, but could not find the man any more." The enlightened successor of Alex-
ander is pursuing, with energy and zeal, a reform in the laws of the empire, which his great
predecessor begun. It will, without any doubt, put an end to such scenes as Howard has
described; and this code, if completed according to the humane and liberal views of the
emperor, will be a monument more glorions than any that was ever erected to a conquering
monarch.
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121
Lancaster, in Pennsylvania, for an atrocious murder. The execution
was, as usual, witnessed by an immense multitude; and of the salutary
effect it had on their feelings and morals, we may judge from the fol-
lowing extract from a newspaper printed in the neighbourhood(a).
The material facts, which are stated in it, having been since confirmed
to me by unquestionable authority:
"It has long" says the judicious editor, "been a controverted point,
whether public executions, by the parade with which they are con-
ducted, do not operate on the vicious part of the community more as
incitements to, than examples deterring from, crime. What has taken
place in Lancaster would lead one to believe, that the spectacle of a
public execution produces less reformation than criminal propensity.
While an old offence was atoned for, more than a dozen new ones were
committed, and some of a capital grade. Twenty-eight persons were
committed to jail on Friday night for divers offences at Lancaster, such
as murder, larceny, assault and battery, &c. besides many gentlemen
lost their pocket-books, where the pick-pockets escaped, or the jail
would have overflowed.
"In the evening, as one Thomas Burns, who was employed as a
weaver in the factory near Lancaster, was going home, he was met by
one Wilson, with whom he had some previous misunderstanding, when
Wilson drew a knife and gave him divers stabs in sundry places, which
are considered mortal. Wilson was apprehended and committed to jail,
and had the same irons put on him which had scarcely been laid off
long enough by Lechler to get cold.”
A letter, in answer to some inquiries I made on the subject, adds to
this information, that Wilson was one of the crowd who left his resi-
dence expressly to witness the execution and to take away all doubt
that the Gazette account was not exaggerated, that he has since been
convicted of the murder.
I pray the advocates for this punishment to reflect on this example,
to recollect that, detailed in my former report, of the sale of forged notes
in the chamber where lay the corpse(b) of him who was that day ex-
ecuted for a similar offence. I ask them seriously to ponder on them,
on the numerous other instances of a like nature that must occur to
them, and then to say, whether they can believe the punishment of
death an efficient one for murder. The most serious and intense re-
flection has brought my mind to the conclusion, not only that it fails in
any repressive effect, but that it promotes the crime. The cause it is
not very easy to discover, and still more difficult to explain; but I
argue from effects-and when I see them general in their occurrence
(a) Yorktown Gazette.
(b) The following circumstance, which I find stated by a gentleman at a public meeting
in Southampton, in England, as having been detailed by Mr Buxton, is a stronger case :-
"An Irishman, found guilty of issuing forged bank notes, was executed, and his body de-
livered to his family. While his widow was lamenting over the corpse, a young man came
to her to purchase some forged notes. As soon as she knew his business, forgetting at once
both her grief and the cause of it, she raised up the dead body of her husband, and pulled
from under it a parcel of the very paper for the circulation of which he had forfeited his life.
At that moment an alarm was given of the approach of the police; and not knowing where
else to conceal the notes, she thrust them into the mouth of the corpse, and there the officers
found them."
Q
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after the same event, I must believe that event to be the efficient cause
which produces them, although I may not be able to trace exactly their
connexion. This difficulty is particularly felt in deducing moral effects
from physical causes, or arguing from the operation of moral causes on
human actions. The reciprocal operations of the mind and body must
always be a mystery to us, although we are daily witnesses of their
effects. In nothing is this more apparent, or the cause more deeply
hidden, than in that propensity which is produced on the mind to imi-
tate that which has been strongly impressed on the senses, and that
frequently in cases where the first impression must be that of painful
apprehension. It is one of the earliest developments of the under-
standing in childhood. Aided by other impulses, it conquers the sense
of pain, and the natural dread of death. The tortures inflicted on them-
selves by the fakirs of India; the privations and strict penance of some
monastic orders of Christians; and the self-immolation of the Hindoo
widows, may be attributed, in part to religion, in part to the love of
distinction and fear of shame: but no one, nor all of these united, ex-
cept in the rare cases of a hero or a saint, could produce such extraordi-
nary effects, without that spirit of imitation to which I have alluded.
The lawgiver, therefore, should mark this, as well as every other pro-
pensity of human nature; and beware how he repeats in his punish-
ments, the very acts he wishes to repress, and makes them examples to
follow rather than to avoid.
Another reason, perhaps not sufficiently enlarged upon in the former
report, to show that it cannot be efficient, is drawn from the uncertainty
of its infliction—an uncertainty which reduces the chance of the risk to
less than that which is, in many instances, voluntarily incurred in many
pursuits of life.
Soldiers march gaily to battle with the certainty that
many of them must fall-those who commit a crime punishable with
death, always proceed with the hope that they will avoid detection.
You find men to affront death in all the shapes it can assume(a); to
pursue the most dangerous trades; to undertake the most desperate en-
terprises, for the most trifling considerations. While there is a chance
of escape, the happy disposition of our nature makes us always believe
it will be favourable to us. We seize the certain enjoyment that is of-
fered by glory, by profit, or even by convenience, and we trust that
we shall escape the uncertain danger. If this is acknowledged in the
common pursuits of life, why should it be denied in the rarer instance
(a) In one of those imaginary characters, drawn by the great modern painter of human pas-
sions and pursuits, after his most felicitous manner, we have this reckless contempt of danger
admirably personified in the ferocious buccanier:
"Inured to danger's direst form,
Tornade and earthquake, flood and storm;
Death hath he seen by sudden blow,
By wasting plague, by torture slow,
By mine, or breach, by steel or ball,
Knew all his shapes, and scorned them all."
Bertram is the beau ideal of a pirate; but the same contempt of death is found, in a less
degree, perhaps, to animate other freebooters-witness the cool reply of one of them to a
fellow-sufferer on the wheel:-"Why do you make all this noise; (said he), did you not
know that in our profession we were subject to one malady more than the rest of the
world?"
THE CODE OF CRIMES AND PUNISHMENTS.
123
of crime? The great error of our laws is, an obstinate refusal to
consider an offender against them as moved by the same impulses,
guided by the same motives with the rest of the community; refusing,
in short, to consider him as a man. They suppose him a demon or an
idiot, and their provisions are, accordingly, for the most part calculated
for a being actuated by perversity too incorrigible to be amended, or
by folly incapable of pursuing his own happiness when the path is
pointed out. If we, on the contrary, were to frame our laws for man
as he is, should we consider that the threat of death would be an efficient
restraint to him who before he commits the crime, takes every measure
that prudence can dictate to avoid discovery; and who, after that, cal-
culates on the proverbial uncertainty of the law; while many of us are
not deterred by a risk which we cannot flatter ourselves to avoid, for a
trifling gain or a momentary gratification. Yet it may be said, the good
citizen incurs the risk of death, but not of death in such a form; he
would not for the gratification or reward you speak of, incur the slightest
risk of infamy, although the greatest that can be presented of honour-
able death does not affright him. This is most true, and this is most
conclusive in the argument. It is not death, then, that is feared; it is
death with ignominy. But if it be that which makes death dreadful,
will it not make life intolerable? If the suffering of shame cannot be
endured during the short interval between conviction and execution,
how can it be borne spread over a whole life?
But the murderer has no shame!-Then, according to your argu-
ment, he has nothing to make him fear death more, in his criminal pur-
suits, than you do in your honest occupation of inhaling pestilence in
an infected hospital, or poison in the manufacture of mercury, or when
you are heroically facing it on the ocean or in the field. Why, then,
should the lesser risk, against which he thinks he has guarded, deter
him, when the greater which you know you must face, has no effect
upon you?
Let no man whose duty it is to determine on this import-
ant measure, evade this question; if he decide it as I think reason and
the slightest knowledge of human nature must direct, the denunciation
of death must be acknowledged to be no efficient bar to the commission
of the only crime in which you think proper to employ it.
There is no point in the argument on which stronger reasoning and
more persuasive authority could be produced than on this, which has
more than once been necessarily introduced, for it connects itself with
every other.
From the operation of the earliest written laws of which
history gives us any account, down to the present day, it has been in-
variably observed by all who would take the trouble to think, that the
inexecution of penal laws was in exact proportion to their severity.
Those of Draco have become proverbial for this last quality; and their
cruelty has been generally supposed a sufficient reason for their aboli-
tion by Solon. But the fact is, that they were abolished, not so much
by Solon, as by the impossibility of carrying them into execution.
When the stealing an apple incurred the punishment of death, what
citizen would accuse-what witness would testify-what assembly of
the people would convict-nay, what executioner would be found to
present the poisoned cup? We are accordingly told expressly, that
these laws were abolished, not by a formal decree, but by the tacit and
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unrecorded consent of the Athenians(a). I make no quotations from
modern writers on penal law to this point, for there is not one who has
not given his testimony in favour of the position I have taken; and
yet, by a most singular incongruity, each of them has a favourite crime
to which he thinks it inapplicable.
This is not an essay to prove the inutility, the danger, and if these
are admitted, the crime of employing the punishment of death.
Such
a work would require a methodical arrangement, and a research into
the first principles of penal law, which cannot be expected from a mere
explanatory report, in which heads of argument are suggested without
much order and with little development, leaving to the enlightened
minds, to which they are addressed, the task of pursuing to all their
consequences, the topics which are raised for consideration. With
this understanding, I shall add a few more reflections on this subject,
so interesting to our best feelings.
All nations, even those the best organized, are subject to political
disorders, during wich the violent passions that are excited avail them-
selves of every pretext for their indulgence; and parties, animated with
the rage of civil discord, mutually charge each other with the worst.
intentions, and blackest crimes; but even in the hottest warfare of party
rage, the destruction of a rival faction or a dangerous leader, is seldom
attempted but by the imputation of some crime; new laws are not
made on such occasions, but the existing laws are perverted and mis-
applied; new punishments are not invented, but those already known
are rigorously enforced against the innocent. This is the usual state.
of things in all intestine commotions, and even after they have assumed
the shape of civil war, accompanied by all its horrors, those who do
not fall in the field are subjected to something like a trial before their
lives are sacrificed. Murder, on those occasions, arrays itself in the
spotless ermine of justice, covers itself with her robes, mounts her
sacred seat, borrows her holy language, adopts her forms, calls its
iniquitous sentence the judgment of the law; and even when it stretches
forth its bloody hand for execution, it wields her own weapon, and in-
flicts on the innocent victim no other punishment than that which pre-
vious laws had provided for guilt.
This is necessary, is inevitable in cases of civil discord. What-
ever may be the projects of unprincipled leaders, the people who com-
pose their party and their strength, must be made to believe that those
to whom they adhere are the friends and supporters of the laws, and
therefore no violent open disregard of established forms would be
tolerated, even where the essentials of justice are violated; forms speak
to the senses, the substance of justice to the understanding only-this
last may be perverted by the passions or imposed on by falsehood in
fact, or sophistry in argument; but the eyes and ears only are neces-
sary to observe a violation of form. In the times I have supposed-
and they may afflict our country as they have all others-it is of im-
portance to sanction no penalty that may be used to the destruction of
your best citizens; they are the most obnoxious to all parties; not
partaking the violence of either, they are suspected by both, and be-
come the first victims; and never has any revolutionary or factious.
(a) "Draconis leges, quoniam videbantur impendio acerbiores, non decreto jussuque, sed
facito illiteratoque Atheniensium consensu, obliteratæ sunt."-Aulus Gellius, l. 3, c. 18.
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125
storm desolated any land, without the loss of men lamented even by
their mad executioners, after the calm of peace had restored them to
their senses.
Beware then, how you sharpen the axe, and prepare the
other instruments of death, for the hand of party violence. Beware
how you so accustom the people to their use, that whenever their judg-
ment may be led astray so as to think the innocent guilty, they may
feel no shock in witnessing the last agonies of a man whom they may
afterwards deplore as a national loss, and whose death they may feel
as a national disgrace. I dwell upon this, because I deeply feel its
force.
History presents to us the magic glass on which, by looking at past,
we may discern future events. It is folly not to read; it is perversity
not to follow its lessons. If the hemlock had not been brewed for fel-
ons in Athens, would the fatal cup have been drained by Socrates? If
the people had not been familiarized to scenes of judicial homicide,
would France or England have been disgraced by the useless murder
of Louis or of Charles? If the punishment of death had not been sanc-
tioned by the ordinary laws of those kingdoms, would the one have
been deluged with the blood of innocence, of worth, of patriotism, and
science, in her revolution? Would the best and noblest lives of the other
have been lost on the scaffold, in her civil broils? Would her lovely
and calumniated queen, the virtuous Malsherbes, the learned Condor-
cet-would religion, personified in the pious ministers of the altar-
courage and honour, in the host of high minded nobles-and science,
in its worthy representative Lavoisier-would the daily hecatomb of loy-
alty and worth-would all have been immolated by the stroke of the
guillotine; or Russel and Sidney, and the long succession of victims of
party and tyranny, by the axe? The fires of Smithfield would not have
blazed; nor, after the lapse of ages, should we yet shudder at the name of
St Bartholomew, if the ordinary ecclesiastical law had not usurped the
attributes of divine vengeance, and by the sacrilegious and absurd doc-
trine, that offences against the deity were to be punished with death,
given a pretext to these atrocities. Nor, in the awful and mysterious
scene on Mount Calvary, would that agony have been inflicted, if by
the daily sight of the cross, as an instrument of justice, the Jews had
not been prepared to make it one of their sacrilegious rage. But there
is no end of the examples which crowd upon the memory, to show the
length to which the exercise of this power, by the law, has carried the
dreadful abuse of it, under the semblance of justice. Every nation has
wept over the graves of patriots, heroes and martyrs, sacrificed by its
own fury. Every age has had its annals of blood.
But not to resort to the danger of the examples in times of trouble and
dissension, advert once more to that which was formerly urged, and to
which I must again hereafter return-that which attends its regular
practice in peace-the irremediable nature of this punishment, when
error, popular prejudice, or false or mistaken testimony, has caused its
infliction to be ordered upon the innocent; a case by no means of so
rare occurrence as may be imagined. It is not intended to enter into
a detail of those which I have myself collected; they are not few, al-
though they must necessarily bear a small proportion to those which
were not within my reach. The author of a book of high(a) authority
(a) Phillips on Evidence, Appendix.
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INTRODUCTORY REPORT TO
on evidence, has brought together several cases which are well authen-
ticated. In France, in the short space of one year, I have gathered
from the public papers that seven cases occurred, in which persons con-
demned to death by the primary courts and assizes, have been acquitted
by the sentence of a superior tribunal on a reversal of the sentence(a). In
other states of our union these cases are not uncommon. With us the
organization of our courts prevents the correction of any error, either
in law, or in fact, by a superior tribunal. But every where it is matter
of surprise that any cases should be discovered of these fatal mistakes.
The unfortunate subjects of them are, for the most part, friendless ;
generally their lives must have been vicious, or suspicion would not
have fastened on them; and men of good character sometimes think it
disreputable to show an interest for such men, or to examine critically
into the circumstances of their case. They are deserted by their con-
nexions, if they have any; friends they have none. They are con-
demned-executed-forgotten; and in a few days, it would seem,
that the same earth which covered their bodies has buried all re-
membrance of them, and all doubts of their innocence or guilt. It is,
then, not unreasonable to suppose, that many more such cases have
existed than those that have fortuitously been brought to light(b).
(a) Is not this a striking lesson to teach us the necessity of providing the means of cor-
recting error in criminal as well as in civil cases-of protecting life and liberty as well as
property? The importance of the subject may, perhaps, excuse my referring once more to
the bill formerly offered to the general assembly by the reporter.
(b) Let me give the substance of this objection to capital punishment in the words of a
man to whom the science of legislation owes the great attention that is now paid to its true
principles, and to whom statues would be raised if the benefactors of mankind were as much
honoured as the oppressors of nations:-" The same objection," he says, "lies against all
afflictive penalties, that they cannot be remedied, but they may be compensated. For death
alone there is no resource. There is no man, ever so little versed in criminal procedure,
who does not feel a kind of terror, when he thinks on how slight a circumstance the life of
a man under accusation for a capital crime, depends, and who does not recollect instances
in which individuals have owed their lives to some extraordinary circumstance, accidently
brought to light at the critical moment of danger. The chances of danger are, without
doubt, very different, according to the different systems of procedure. . . but are there any
judiciary forms, which can guard, in perfect security, against the snares of falsehood and the
illusions of error? No! absolute security is a point of perfection which may be approached
much nearer than has yet been done without reaching it; for witnesses may deceive, or be
deceived; the number of those who testify to the same fact is not an infallible safeguard;
and as to proofs which are drawn from circumstantial facts-circumstances the most conclu-
sive, in appearance-those which it would seem impossible to explain, but on the supposi-
tion of guilt-even these may be the effect of chance, or of preconcerted circumstances,
arranged by interested persons. The only proof which would appear to bring complete con-
viction, the free confession of the accused, besides its being very rare, does not always give
absolute certainty-since men have been found, as in the case of witchcraft, to confess
themselves guilty of a crime that it was impossible to commit. Those are not imaginary
alarms, drawn from simple possibilities; there are no criminal records that do not present
examples of these fatal mistakes-and those which, by a concurrence of singular events,
have become known, give us reason to suspect many innocent victims unknown. It may
even be observed, that the cases in which the word evidence is most frequently used, are
those in which the testimony is most doubtful. When the alleged crime is one of those
which excites the most antipathy, or heightens the spirit of party, the witnesses uncon-
sciously become accusers; they are no more than the echoes of public clamour; the fer-
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127
Would you retain a punishment that, in the common course of events,
must be irremediably inflicted, at times, on the innocent, even if it se-
cured the punishment of the guilty? But that is far from being the
effect. While you cannot, in pacticular cases, avoid its falling upon
innocence, that very cause, from the imperfection of all testimony,
will make it more favourable to the escape of the guilty; and the maxim,
so often quoted on this occasion(a), will no longer be perverted in order
to effect a compromise between the conscience of the juror and the se-
verity of the law, when your punishments are such only as admit of
remission when they have been found to be unjustly imposed.
Other arguments, not less forcible-other authorities, equally respect-
able, might be adduced to show the ill effects of this species of punish-
ment; but the many topics that are still before me in this report,
oblige me to pursue this one no further than to inquire, what good can
be expected, or what present advantage is derived from retaining this
punishment? Our legislation surrendered it without a struggle, in all
cases, at first, but murder, attempt to murder, rape and servile insurrec-
tion; and afterwards extended it to a species of aggravated burglary(b).
Now as these cases are those only in which it has been deemed expe-
dient to retain this punishment; as it has been abandoned in all others,
the serious inquiry presents itself, why it was retained in these, or
why abandoned in the others? Its inefficiency, or some of the other
objections to it, must have been apparent in all the other numerous of-
fences in which it has been dispensed with, or it would certainly have
been retained, or restored. Taking this acknowledged inefficiency, in
the numerous cases, for the basis of the argument, let us inquire whether
there is any thing which makes it peculiarly adapted to the enumerated
crimes, which it is unjust or inexpedient to apply to any of the others?
We have three modes of discovering the truth on this subject: by
reasoning from the general effects of particular motives on human ac-
tions; by analogy, or judging from the effects in one case to the proba-
ble effects in another; or by experience of the effect on the particular
case. The general reasoning upon the justice and efficacy of the punish-
ment will not be repeated here, but it is referred to as being conclusive
mentation increases by its own action, and it is no longer permitted to doubt. It was a frenzy
of this kind which first seized the people, and was afterwards cominunicated to the judges
in the unfortunate affair of Calas."-Theory of Rewards and Punishments, Bentham.
(a) That it is better ten guilty should escape than one innocent suffer, is invariably given
to the jury as a maxim in all capital cases, depending on circumstantial evidence; and where
there are no irritating causes, it invariably succeeds.
(b) Act of 20th March 1818, sec. 3. Breaking into a dwelling house in the night
time, with intent to steal, &c. so far this crime was already punishable under the act of
1805. The severe punishment of death is added, if any person was lawfully within the
house, and if the offender was armed with a dangerous weapon; or if not so armed, if he
armed himself in the house, or made an assault on the person then being in the house
lawfully. If the occupier of the house was not there lawfully, the offender escapes death!
What a circumstance on which to hang the life of a man. If the tenant has a good lease,
the robber is hanged, if he is an intruder, he escapes death. Again, if the robber meets
nobody in the house and steals ten thousand dollars, he only suffers imprisonment; but
if he sees a servant, and shakes his fist at him, he is hanged, although he should steal
nothing. If he breaks in without weapons, and rifles the house of all its contents, he is
imprisoned only; if he finds a fowling-piece, and carries it off in his hand, he is hanged.
Another specimen of the laws which nothing but presumption could attempt to amend.
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INTRODUCTORY REPORT TO
as to all offences, and admitting of no exception that would apply to
murder, or either of the three other cases in which our laws inflict it.
If we reason from analogy, we should say the only argument ever
used in favour of death as a punishment is, that the awful example it
presents will deter from the commission of the offence: but by your
abandonment of it in all cases but these, you acknowledge it has no
efficacy there. Analogy, therefore, would lead us to the conclusion,
that if it was useless in the many cases, it would be so in the few. But
it is acknowledged, that no analogy, or any other mode of reasoning;
no theory, however plausible, ought to influence, when contradicted by
experience. You have tried this remedy, and found it ineffectual! The
crimes to which you have applied it, are decreasing in number and
atrocity under its influence! If so, it would be imprudent to make any
change, even under the most favourable prospects that the new system
would be equally efficient. Let us try it by this test. For the first
three years after the transfer of the province, there was not a single
execution or conviction for either of these crimes. In the course, how-
ever, of the first six years, four Indians, residing within the limits of
the state, made an attack on some of the settlers, and were either given
up by the tribe, or arrested and condemned, and two were executed as
for murder, and one negro was condemned and executed for insurrec-
tion. In the next six years there were ten convictions; in the succeed-
ing four, to the month of January 1822, fourteen; so that we find the
number of convictions for the enumerated crimes have nearly doubled
in every period of six years, in the face of this efficient penalty. But
the population of the state doubles only once in twenty years; there-
fore, the increase of this crime progresses in a ratio of three to one, to
that of the population; and we should not forget, in making this calcu-
lation, the important and alarming fact, that numerous instances of
homicide, and attempts to kill, occur, which are rarely followed by
prosecution, and more rarely still by conviction. I mean, all that class
that have their origin in a mistaken sense of honour, including not only
the lives sacrificed to the tyranny of public opinion in duels, but those
less excusable and increasing cases of wounds and death, inflicted in
atonement for some injury offered to personal dignity. Under the
statute against stabbing, I find but three convictions up to the year 1822;
one instance of rape, to the same period; and what is somewhat singu-
lar, not a single instance of burglary from 1805 until 1820, in which
year, and the succeeding one, there were two cases, just two years after
it was made a capital crime. What are we to conclude from this state-
ment? First, I think, that, of burglary, one of the crimes to which
capital punishment is annexed, fifteen years' experience, (during which
there was not a single conviction, and as far as is known, not a single
indictment under the law which denounced imprisonment as the penal-
ty) ought to have convinced us, that the severer punishment was not
necessary, while the two convictions which so soon succeeded the pro-
mulgation of that law, are strong testimony that the punishment of
death is not an effectual remedy for the evil. As to rape, that its rare
occurrence is much more properly to be attributed to the manners of
the age than to any fear of the punishment annexed; for if that were
the efficient cause, we should certainly find it at least as powerful in
the case of murder, a crime to which the offender is not stimulated as
in the former case, by the strongest sensual appetite.
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129
Besides, this is not the strong hold of those who argue in favour of
capital punishment. Driven from every other ground, they defend it
as peculiarly applicable to the case of murder. The slow abandonment
of it for other offences, is a proof of the gradual advance of true princi-
ples, and the pertinacity with which it is adhered to in this, shows the
force of early impressions and inveterate prejudice, even in the most
enlightened minds: yet that prejudice must in time yield to the evi-
dence which the practical results which have attended this infliction-
results which show, almost to demonstration, that the public exhibition
of homicide, directed by the sacred voice of the law, so far from re-
pressing, does but encourage it, in private quarrels. It is commonly
advocated on the principle of vindictive justice(a), and can be, with a
due regard to facts, on no other. The murderer deserves death! He
that sheds man's blood, by man shall his blood be shed! Blood for
blood! These are the exclamations that are used instead of argument.
Such sentiments, combined with the spectacle of legal revenge which
they dictate, can produce but one effect. Half the odium and horror
of taking human life is lost, by the example of seeing it made a public
duty, while the motives are sanctified which are but too apt to justify
it in the mind of an irritated individual, who magnifies the injury he
has received, overlooks the provocation he gave, and thinks himself
excusable in doing, to satisfy his passions, that which public justice
does from the same motive, revenge. The sensation of horror with
which we see a human being suffering a violent death, would certainly
be increased, if the hand of justice was never employed in the unholy
work; and private vengeance would be checked by the laws, when they
no longer encouraged it by their example.
But however this vindictive feeling may betray itself in the warmth
of conversation, it is not brought forward in any serious argument; there
it is too universally exploded. What then is said? That it is a punish-
ment proportioned to the crime; that, as murder is the highest of all of
fences, death, the greatest of all punishments, ought to be applied to
it. But why ought it to be so applied? To apportion the punishment
to the offence, does not mean to make the culprit suffer the same quan-
tity of evil which he inflicted by his crime; that would be both im-
possible and unjust. It means, that the punishment should be such as
to deter from the commission of the crime, but no greater. If, then,
death has not this effect, why ought it to be applied? But that it has
not this effect, is shown by reasoning and by fact. Why then will you
continue to apply it? Pressed by this inquiry, we have the same eter-
nal answer-murder deserves death. Out of this circle no reasoning
can drive them. Sometimes, indeed, we arc asked, are you sure that
if we give up this punishment, your substitute will prove effectual? If
(a) I had once a conversation with an exalted magistrate, a man of high attainments
and great liberality, on the abolition of this punishment. He acceded to the propriety
of the measure, in all cases but murder; because of the difficulty of keeping the offender,
and the severity of solitary confinement, which was proposed to be substituted. But when
these two objections were, as I thought, satisfactorily answered, he replied by one of the
exclamations used in the text, and added, very frankly-"I must confess that there is
some little feeling of revenge at the bottom of my opinion on this subject." If all other
reasoners were equally candid, there would be less difficulty in establishing true doc-
trines.
Ꭱ
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INTRODUCTORY REPORT TO
you mean so effectual as to eradicate the crime, I answer, no! But I
am as sure as experience and analogy, and reasoning united, can make
me, that it will be more effectual. What is it we fear? Why do we
hesitate? You know, you cannot deny, that the fear of the gallows
does not restrain from murder. We have seen a deliberate murder
committed in the very crowd assembled to enjoy the spectacle of a
murderer's death; and do we still talk of its force as an example? In
defiance of your menaced punishment, homicide stalks abroad and raises
its bloody hand at noon-day in your crowded streets; and when arrested
in its career, takes shelter under the example of your laws, and is pro-
tected by their very severity, from punishment. Try the efficacy of
milder punishments; they have succeeded. Your own statutes, all those
of every state in the union, prove that they have succeeded, in other
offences; try the great experiment on this also. Be consistent; restore
capital punishments in other crimes, or abolish it in this. Do not fear
that the murderers from all quarters of the earth, seduced by the mild-
ness of your penal code, will choose this as the theatre of their exploits.
On this point we have a most persuasive example. In Tuscany, as we
have seen, neither murder nor any other crime was punished with death,
for more than twenty years, during which time we have not only the
official declaration of the sovereign, that "all crimes had diminished,
and those of an atrocious nature had become extremely rare," but the
authority of the venerable Franklin, for these conclusive facts; that in
Tuscany where murder was not punished with death, only five had
been committed in twenty years; while in Rome, where that punish-
ment is inflicted with great pomp and parade, sixty murders were
committed in the short space of three months, in the city and its
vicinity (a). "It is remarkable," he adds to this account "that the man-
(a) If ever any philosophy deserved the epithets of useful and practical, it was that of
Dr Franklin. His opinions must have weight, not only from his character, but from the
simple, intelligible reasoning by which they are supported. What says this venerable and
irreproachable witness in the cause of humanity, which we are now pleading?" I sus-
pect the attachment to death, as a punishment for murder, in minds otherwise enlightened
upon the subject of capital punishments, arises from a false interpretation of a passage in
the old testament, and that is—'He that sheds the blood of man, by man shall his blood
be shed.' This has been supposed to imply, that blood could only be expiated by blood.
But I am disposed to believe, with a late commentator on this text* of scripture, that it
is rather a prediction than a law. The language of it is simply, that such is the folly
and depravity of man, that murder, in every age, shall beget murder. Laws, therefore,
which inflict death for murder, are, in my opinion, as unchristian as those which justify
or tolerate revenge; for the obligations of Christianity upon individuals, to promote re-
pentance, to forgive injuries, and to discharge the duties of universal benevolence, are
equally binding upon states.
"The power over human life is the sole prerogative of him who gave it. Human
"I hope I shall not offend any one by taking the liberty to put my own construction
on this celebrated passage, and to inquire, why it should be deemed a precept at all? To
me, I must confess, it appears to contain nothing more than a declaration of what will gene-
rally happen and in this view to stand exactly upon the same ground with such passages
as the following-He that leadeth into captivity, shall go into captivity' He that taketh
up the sword, shall fall by the sword.' The form of expression is precisely the same in both
texts. Why then may they not all be interpreted in the same manner, and considered, not
as commands, but as denunciations? and if so, the magistrate will no more be bound by the
text in Genesis, to punish murder with death, than he will by the text in the Revelations, to
sell every Guinea captain to our West India planters."-Rev. W. Turner.
J
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131
ners, principles, and religion of the inhabitants of Tuscany, and of
Rome, are exactly the same. The abolition of death alone, as a punish-
ment for murder, produced this difference in the moral character of the
two nations." From this it would appear, rather that the murderers
of Tuscany were invited, by the severe punishments in the neighbour-
ing territories of Rome, than that those of Rome were attracted into
Tuscany by their abolition. We have nothing to apprehend, then, from
this measure; and if any ill effects should follow the experiment, it is
but too easy to return to the system of extermination.
One argument, the ferocious character impressed on the people by
this punishment, which was insisted on in the first report, has been so
strongly illustrated by a subsequent event in Pennsylvania, that I can-
not omit stating it. After the execution of Lechler had gratified the
people about York and Lancaster with the spectacle of his death, and
had produced its proper complement of homicide and other crimes,
a poor wretch was condemned to suffer the same fate, for a similar of-
fence, in another part of the state, where the people had not yet been
indulged with such a spectacle. They, also, collected by thousands and
laws, therefore, are in rebellion against this prerogative, when they transfer it to human
hands.
"If society can be secured from violence by confining the murderer, so as to prevent
a repetition of his crime, the end of extirpation will be answered. In confinement he
may be reformed; and if this should prove impracticable, he may be restrained for a term
of years that will probably be co-eval with his life.
"There was a time when the punishment of captives with death or servitude, and the
indiscriminate destruction of peaceable husbandmen, women, and children, were thought
to be essential to the success of war, and the safety of states. But experience has taught
us that this is not the case; and in proportion as humanity has triumphed over these
maxims of false policy, wars have been less frequent and terrible, and nations have
enjoyed longer intervals of internal tranquillity. The virtues are all parts of a circle.
Whatever is humane, is wise; whatever is wise, is just; and whatever is wise, just, and
humane, will be found to be the true interest of states, whether criminals or foreign
enemies are the subject of their legislation.
"For the honour of humanity it can be said, that in every age and country, there have
been found persons in whom uncorrupted nature has triumphed over custom and law.
Else, why do we hear of houses being abandoned near to places of public execution?
Why do we see doors and windows shut the days and hours of criminal executions?
Why do we hear of aid being secretly afforded to criminals to mitigate or elude the se-
verity of their punishments? Why is the public executioner of the law a subject of such
general detestation? These things are latent struggles of reason, or rather, the secret
voice of God himself, speaking in the human heart, against the folly and cruelty of public
punishments.
"I shall conclude this inquiry by observing, that the same false religion and philosophy
which once kindled the fire on the altar of persecution, now dooms the criminal to public
ignominy and death. In proportion as the principles of philosophy and Christianity are
understood, they will agree in extinguishing the one and destroying the other. If these
principles continue to extend their influence upon government, as they have done for
some time past, I cannot help entertaining a hope, that the time is not very distant, when
the gallows, the pillory, the stocks, the whipping-post, and the wheel-barrow (the usual
engines of public punishment), will be connected with the history of the rack and the
stake, as marks of the barbarity of ages and countries, and as melancholy proofs of the
feeble operation of reason and religion on the human mind."-Inquiry upon Public
Punishments.
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INTRODUCTORY REPORT TO
tens of thousands. The victim was brought out. All the eyes in the
living mass that surrounded the gibbet, were fixed on his countenance,
and they waited with strong desire, the expected signal for launching
him into eternity. There was a delay. They grew impatient; it was
prolonged, and they were outrageous; cries like those which precede
the tardy rising of the curtain in a theatre were heard. Impatient for
the delight they expected in seeing a fellow creature die, they raised a
ferocious cry. But when it was at last announced that a reprieve had
left them no hope of witnessing his agonies, their fury knew no bounds;
and the poor maniac, for it was discovered that he was insane, was with
difficulty snatched by the officers of justice from the fate which the
most violent among them seemed determined to inflict(a). This is not
an overcharged picture; the same savage feeling has been more than
once exhibited in different parts of the union, and will always be pro-
duced by public executions, unless it is replaced by the equally danger-
ous feeling of admiration and interest for the sufferer(b). Which of the
two is to prevail, depends on circumstances totally out of the power of
the lawgiver or the judge to foresee, or control; but by the indulgence
of either feeling, every good end of punishment is totally defeated.
I cannot, I ought not, to dismiss this subject without once more
pressing on the most serious consideration of the legislature, an argu-
ment which every new view of it convinces me is important; and if
we listen to the voice of conscience, conclusive: the irremediable na-
ture of this punishment. Until men acquire new faculties, and are
enabled to decide upon innocence or guilt without the aid of fallible
and corruptible human evidence, so long will the risk be incurred of
condemning the innocent. Were the consequence felt as deeply as it
ought to be, would there be an advocate for that punishment, which,
applied in such case, has all the consequences of the most atrocious
murder to the innocent sufferers-worse than the worst murderer! He
stabs, or strikes, or poisons, and the victim dies-he dies unconscious
of the blow-without being made a spectacle to satisfy ferocious cu-
riosity, and without the torture of leaving his dearest friends doubtful
of his innocence, or seeing them abandon him under the conviction
of his guilt; he dies, and his death is like one of those inevitable chances
to which all mortals are subject; his family are distressed, but not dis-
honoured; his death is lamented by his friends, and, if his life deserved
it, honoured by his country. But the death inflicted by the laws, the
(a) This disgraceful scene took place at Orwigsburgh. The wretched madman who was
so near suffering, was named Zimmerman. I have the details from a gentleman of the
first respectability in Pennsylvania; my informant adds to his account of this transac-
tion-" Executions in this state are scenes of riot and every species of wickedness;
twenty, thirty, and forty thousand persons have been in attendance on such occasions.
In country parts, two and even three days are employed in the merry-making, much after
the manner of fairs in former times.
,
(b) The tendency of public executions at times to elevate the sufferer to the honours
of saintship, and lose the detestation due to his crime in admiration for the piety of the
new convert, is not confined to the United States. The scene described in the first re-
port, of the execution of the mail robbers at Baltimore, has been represented in other
countries. A note to that part of the report in a German translation, says-" One would
think that the author was an eye-witness to the execution of the murderer Jonas in this
place-so exactly is the scene described."
THE CODE OF CRIMES AND PUNISHMENTS,
133
murder of the innocent under its holy forms, has no such mitigating
circumstances. Slow in its approach, uncertain in its stroke, its victim
feels not only the sickness of the heart that arises from the alternation
of hope and fear, until his doom is pronounced, but when that becomes
inevitable; alone, the tenant of a dungeon during every moment that
the cruel lenity of the law prolongs his life, he is made to feel all those
anticipations, worse than a thousand deaths. The consciousness of in-
nocence, that which is our support under other miseries, is here con-
verted into a source of bitter anguish, when it is found to be no pro-
tection from infamy and death; and when the ties which connected
him to his country, his friends, his family, are torn asunder, no con-
soling reflection mitigates the misery of that moment.
He leaves un-
merited infamy to his children; a name stamped with dishonour to their
surviving parent, and bows down the grey heads of his own with sorrow
to the grave.
As he walks from his dungeon, he sees the thousands
who have come to gaze on his last agony; he mounts the fatal tree, and
a life of innocence is closed by a death of dishonour. This is no pic-
ture of the imagination. Would to God it were! Would to God, that if
death must be inflicted, some sure means might be discovered of mak-
ing it fall upon the guilty. These things have happened. These legal
murders have been committed! and who were the primary causes of
the crime? Who authorized a punishment, which once inflicted, could
never be remitted to the innocent? Who tied the cord, or let fall the
axe upon the guiltless head? Not the executioner, the vile instrument
who is hired to do the work of death; not the jury who convict, or the
judge who condemns; not the law which sanctions these errors, but the
legislators who made the law; those who, having the power, did not
repeal it. These are the persons responsible to their country, their
consciences, and their God. These horrors not only have happened,
but they must be repeated: the same causes will produce the same ef-
fects. The innocent have suffered the death of the guilty; the innocent
will suffer. We know it. The horrible truth stares us in the face. We
dare not deny, and cannot evade it. A word, while it saves the inno-
cent, will secure the punishment of the guilty, and shall we hesitate to
pronounce it?
Shall we content ourselves with our own imagined
exemption from this fate, and shut our ears to the cries of justice and
humanity? Shall "sensibility (as has been finely observed) sleep in
the lap of luxury" (a), and not awake at the voice of wretchedness? I
urge this point with more earnestness, because I have witnessed more
than one condemnation under false constructions of law, or perjured, or
mistaken testimony; sentences, that would now have been reversed if
the unfortunate sufferers were within the reach of mercy. I have seen,
in the gloom and silence of the dungeon, the deep concentrated ex-
pression of indignation which contended with grief; have heard the
earnest asseverations of innocence, made in tones which no art could
imitate; and listened with awe to the dreadful adjuration, poured forth
by one of these victims with an energy and solemnity that seemed su-
perhuman, summoning his false accuser and his mistaken judge to meet
him before the throne of God. Such an appeal to the high tribunal
which never errs, and before which he who made it was in a few hours
to appear, was calculated to create a belief of his innocence; that belief
(a) Eden. Principles of Penal Law.
134
INTRODUCTORY REPORT TO
was changed into certainty; the perjury of the witness was discovered,
and he fled from the infamy that awaited him; but it was too late for
any other effect, than to add one more example to the many that pre-
ceded it of the danger, and I may add impiety of using this attribute
of the divine power, without the infallibility that can alone properly
direct it. And this objection alone, did none of the other cogent rea-
sons against capital punishment exist, this alone would make me hail
the decree for its abolition as an event, so honourable to my country and
so consoling to humanity, as to be cheaply purchased by the labour of
a life.
I cannot quit this part of the subject without submitting to the general
assembly the opinion of one whose authority would justify an experi-
ment, even more hazardous than this, but whose arguments are as con-
vincing as his name is respectable. They are not the opinions of one
whom the cant, which is used to cover the ignorance of the day, would
call a theorist, but of a man whose whole life was spent in the useful
and honourable functions of the highest magistracy, whose name is al-
ways mentioned with reverence, and whose doctrines are quoted as au-
thority, wherever the true principles of legal knowledge are regarded.
Hear the venerable D'Aguesseau :
"Who would believe that a first impression may sometimes decide
the question of life and death? A fatal mass of circumstances, which
seem as if fate had collected them together, for the ruin of an unfortu-
nate wretch, a crowd of mute witnesses (and from that character more
dangerous) depose against innocence; they prejudice the judge, his
indignation is roused, his zeal contributes to seduce him; losing the
character of the judge in that of the accuser, he looks only to that which
is evidence of guilt, and he sacrifices to his own reasonings the man
whom he would have saved had he listened only to the proofs of the
law. An unforeseen event sometimes shows, that innocence has sunk
under the weight of conjectures, and falsifies the conclusions which
circumstances had induced the magistrate to draw. Truth lifts up the
veil with which probability had enveloped her; but she appears too
late! The blood of the innocent cries aloud for vengeance against the
prejudice of his judge; and the magistrate passes the rest of his life in
deploring a misfortune which his REPENTANCE CANNOT REPAIR" (a).
The earnestness for this reform is sometimes reproached to its advo-
cates as proceeding from a childish fear, that magnifies the apprehension
of that which we know is appointed to us all.
Not so. The value of
life is not overrated in the argument. There are occasions in which
the risk of its loss must be incurred; in which the certainty of death
must be encountered with firmness and composure. These occasions
are presented by patriotism in defence of our country and our country's
rights; by benevolence in the rescue of another from danger; by re-
ligion, whenever persecution offers the martyr's crown to the faithful:
and it is not known or believed that those who propose to abolish death
as a punishment, either fear it as a natural event or shun its encounter
when required by duty, more than those who think it ought to be re-
tained. He who preserved the life of a Roman citizen, was entitled
to a more honourable recompense than the daring soldier who ventured
his own by first mounting the breach. The civic was preferred to the
(a) D'Auguesseau, 16 Mercuriale.
THE CODE OF CRIMES AND PUNISHMENTS.
135
mural crown. The Romans, during the best period of their history,
reduced this abolition to practice. "Far," said their great orator,
endeavouring in a corrupted age to restore the ancient feeling on the
subject, "far(a) from us be the punishment of death-its ministers-its
instruments. Remove them,, not only from their actual operation on-
our bodies, but banish them from our eyes, our ears, our thoughts; for,
not only the execution, but the apprehension, the existence, the very
mention of these things is disgraceful to a freeman and a Roman citi-
zen. Yet the Romans were not very remarkable for a pusillanimous
fear of death. In the age of which I speak, they did not want the ex-
citement of capital punishment to induce them to die for their country.
On the contrary, it might, perhaps, be plausibly argued, that the ser-
vile disposition, which disgraced the latter ages of the republic, was in
some measure caused by the change, which made the sacrifice of life
the expiation for crime, instead of the consummation and proof of
patriotic devotion.
""
Conscious of having been guilty of much repetition, and certain that
I have weakened, by my version of them, arguments much better used
by others, I am yet fearful of having omitted many things that might
have an effect in convincing any one of those to whom this report is
addressed. The firm religious belief I have of the truth of the doctrine
I advance, contrasted with the sense of my incapacity to enforce it upon
others, must have produced obscurity where the interests of humanity
require there should be light, and confusion where the performance of
my great duty demands order. But the truth will appear in spite of
these obstacles. From the midst of the cloud, with which human im-
perfection has surrounded her, her voice, like that of the Almighty
from the mount, will be heard reiterating to nations as well as to in-
dividuals, the great command, "THOU SHALT NOt kill.
""
Having more fully than was intended, but much more imperfectly
than the subject demands, reviewed the great characteristic that dis-
tinguishes the code, the total abolition of capital punishment, it will be
necessary to advert (which will, hereafter, be very briefly done) to
other penalties, which, for reasons nearly as cogent, have been also
abrogated. As to the nature of the punishments, by which these are
proposed to be replaced, the principal one, imprisonment in its various
grades, is fully discussed in the Code of Prison Discipline. Fines are
retained, but with modifications that lessen the force of the objections
usually made to that punishment. It is certain, that indiscriminately
applied to the poor and the rich, this is one of the most unequal punish-
ments that can well be imagined; and that the wide range of discretion
which the apportionment of it must necessarily require to be vested in
the judge, is another strong objection; but when that discretion is pro--
perly exercised, no penalty can be so easily proportioned to the offence-
and to the circumstances of the offender; it is divisible in the most per-
fect degree, and admits of complete compensation whenever it has been
improperly enforced. But yet it was foreseen that cases would occur,
in which the wealth of the offender might make the highest range of a
(a) Carnifex et abductio capitis, et nomen ipsum crucis absit, non modo a corpore civium
Romanorum sed etiam a cogitatione, oculis, auribus-harum etiam omnium rerum non solum
eventus atque perpessio, sed etiam conditio, expectatio, mentio ipsa denique, indigna cive-
Romano, atque homine libero est.-Cicero pro Rabirio.
136
INTRODUCTORY REPORT TO
discretionary fine a penalty too light to be felt; and in which his
poverty might change the lowest into utter ruin. To avoid as much
as possible these inconveniences, the fine, in most cases, is accompanied
by a discretion to commute it into simple imprisonment, which may
be inflicted on those whose circumstances would enable them to despise
a fine; and on the other hand, to avoid the oppression and ruin of the
poor, it is provided that no fine shall ever exceed one-fourth of the clear
property of the delinquent; and still further to secure the indigent
from ruin, and at the same time to provide for his punishment; where
there is no property, the fine is to be commuted into imprisonment,
calculating one day for every two dollars(a) of the fine, limiting it,
however, so that whatever may be the amount of the fine, the imprison-
ment shall not exceed ninety days. Fines are also rendered more equal,
when inflicted for a breach of official duty, by apportioning them to the
amount of official emolument. There are also general rules, intended
to impress on the mind of the judge the principles by which he ought
to be guided, in the exercise of the discretion vested in him by the law.
These will be found in the Code of Procedure, and the reasons for
those directions in the Introductory Report to that Code.
The collection of fines is regulated by the same rules which govern
executions in civil cases; giving to the state no preference over other
creditors, but from the time of registering the order imposing the fine.
Considering fine as a personal punishment, the death of the offender
operates as a discharge at any time before it is paid. Any other ar-
rangement would make it operate as a partial forfeiture upon his heirs.
Forfeiture and suspension of certain civil and political rights are also
punishments inflicted by the code. They are applied chiefly to mis-
demeanours in office, and to such offences as show the want of the pro-
per qualities to perform the duties which are required by them. These
are sparingly inflicted, because, if too frequent, it would create a body
of men in the community discontented with their situation and ready to
promote any violent change.
Among the civil rights, however, which are forfeitable, is not found.
that of testifying. The reasons of making this change, are set forth
at some length in the Introductory Report to the Code of Evidence.
Here it will be sufficient to remark, that such a disqualification would
be a most serious punishment to persons whose property, reputation,
or life, might depend on the testimony of the person disqualified, but
could be none to him.
In apportioning punishments to different modifications of the same
offence, a mode has been adopted which appeared simple and easily
understood. It is that of directing the increase or diminution of the
punishment for the simple offence to be made by a fractional proportion;
for instance, the punishment for assisting at an unlawful assembly, is
fine from fifty to three hundred dollars, and imprisonment from three
to twelve months; but as this offence is more reprehensible in a magis-
trate, or other officer, it is provided, that if any such are guilty of it,
the penalty shall be doubled. The same effect might be produced by
(a) This valuation of a day's imprisonment may seem high, but a just regard for personal
liberty induced a belief that double the standard of daily wages would not be deemed ex-
cessive.
THE CODE OF CRIMES AND PUNISHMENTS.
137
enacting in the article relating to such modification of the offences, that
the punishment should be fine from one hundred to six hundred dollars,
and imprisonment not less than six nor more than twelve months. But
the contrary course was adopted; because, being equally intelligible, it
avoided repetition, which, as all the conciseness consistent with per-
spicuity was studied in framing the code, made it an object of some
importance; and because the precise proportion being enounced in
declaring the penalty, the aggravation or diminution of the guilt was
more readily impressed on the mind. A reference to the rules for
making these apportionments will enable the general assembly to
judge of the expediency of the provision. It is one, however, of mere
convenience; does not touch any of the essential features in the code,
and if disapproved, the same end may be produced by a labour nearly
mechanical, of inserting the augmentation and diminution at length in
each of the cases where it is directed to be proportionably increased or
diminished. The only very material objection to this change would
be increasing, without necessity, the bulk of the work, and destroying
the association of ideas which it was intended to preserve.
Before entering into the examination which it is proposed to make of
the classification and definition of the several offences, one or two of the
general and peculiar features of the code must be adverted to.
The first
is, the enunciation of the general principles on which it is founded. In
the first arrangement of the work, this idea occurred as one of the highest
utility: and although it was perfectly unprecedented, I was not deterred
from the execution by its novelty. The advantages are recited in the
chapter itself, and need scarcely any elucidation(a). If it be conceded,
that the people ought to know, not only what their agents have done,
but their reasons for doing it; that any work, and particularly that of
legislation, will be better done when the object is clearly defined, and
the means and rules for attaining it have been attentively considered;
that uniformity is necessary, and that it will be better preserved by
having a record of the grounds upon which former laws were made;-
if any of these things be conceded, then is that part of the code a valu-
able improvement, provided it contains the true principles of penal
legislation such as cannot change, and which, if good now, will re-
main so for ever. These, once observed, once acknowledged to be the
rule; every future law will be measured by their standard. Then, no
more discordant provisions; no more vacillating legislation; no more
accumulation of statutes, upon the same matter; none of those evils, in
short, which are contrary to these principles. They will perform the
office of a constitutional rule, not, indeed, avoiding those laws which
are made contrary to it, but preventing their very existence. I rely
more on the importance and utility of this part of the work, because it
is that which, both in its form and substance, has received the most
decided approbation of all those who, both in Europe and America,
have made it the subject of examination or criticism.
An introductory notice contains the explanation of certain provisions
intended, chiefly, to avoid circumlocution and repetition, in the course.
of the work. The disgusting tautology of the English statutes, from
which our own are not entirely free, is by this means avoided. The
strictness with which their judges adhered, at times, to the letter of the
S
(a) Preamble to the Penal Code.
138
INTRODUCTORY REPORT TO
1
statute, induced the necessity of ringing all the chances which number,
gender, and time required, to bring within the words of the statute,
every possible case which they could govern, and the inconvenience
has been so much felt, that a bill has lately passed, containing in sub-
stance(a), the same enactments for avoiding it, that are contained in
the third chapter of the code I now present.
潺
​One article of this chapter relates to another feature in the system that
- is entirely new, but it is thought a very important improvement. I
mean, the definition of all the technical words or phrases used in the
work. The utility of this must be acknowledged by those whose ob-
jection to the introduction of the new code is, that it will unsettle the.
signification that has been affixed, by judicial decisions, to words most
commonly used in statutes. Now if this certainty be, as it unquestion-
ably is, an advantage of the first consequence; then its benefit must be
in proportion to the degree of certainty which is given; but judicial
decisions cannot, from their nature, give this certainty in as great a de-
gree as positive law; the book of definitions therefore will be positive law,
and in order to know the sense in which any word is used in the code,
it will be only necessary to turn to its definition, instead of poring over
a countless number of volumes, and endeavouring, from their incom-
plete or contradictory statements, to find the sense in which it has,
at times, been employed in different cases. But it must be observed,
that although the endeavour has been to preserve as much as possible
(a) The following extract from Mr Peel's speech, introductory to this bill, will show, that
this part of the plan has been deemned worthy of adoption in Great Britain." I certainly
have set the example to the house of drawing up such bills for the future, in an intelligible
manner. Not being myself a lawyer, and possessing, of course no technical knowledge, I
do confess, sir, that there is no task which I contemplate with so much distaste; as the
reading through an ordinary act of parliament. In the first place, the long recapitulations,
the tedious references, the constant iepetitions, the providing or designating offences as
punishments for the specific case of men, women and children, and for every degree and
relation in society, and the necessity of indicating these several personages, and matters by
as many appropriate relations and designations-then the confusion resulting from the at-
tempt to describe, and constantly referring to many different descriptions of property. Really,
sir, all these various repetitions, recapitulations, and references are so tedious and so perplex-
ing, that I for one, almost invariably find myself completely puzzled before I get to the end
of a single clause. The mode I have adopted in this bill to obviate all this confusion and
uncertainty, does seem to me, I speak it with submission, much more eligible and precise
than the usual phraseology, adopted in these acts, and might, I cannot help thinking, be pur-
sued with advantage in bills which may be brought in hereafter. I will give you an example.
It is enacted in my bill, that if any person be convicted of entering into and stealing in any
house, room, &c. he shall be liable to a certain penalty; and in the conclusion of the act,
that there may be no doubt arising from want of specification of sex or the identity of the
offender, there is a clause to this effect: And in order to remove all doubt as to the mean-
ing and intention of certain words in this act, be it hereby further enacted, that whenever
the words person, party, offender,' and so forth occur, they shall each and all of them be
deemed to intend and demonstrate any number of persons or parties; and of any sex, being
the offender or offenders under this act.' If any person, therefore, commit an offence con-
templated by that act, he will, under the general description, be liable to the penalty affixed to
such offence. My bill, therefore, will include every person, male, or female, and of every
rank or condition of offending under its enactments. Owing to the various lights in which
I have considered this provision and the extent which I have thus given to the bill, I am
afraid it will be impossible to frame one more comprehensive."
THE CODE OF CRIMES AND PUNISHMENTS.
139
the same words that are used in common parlance, to express the same
ideas, yet, whenever there was any uncertainty, the signification has
been fixed according to the sense in which the expression is used in the
code; and that philological science has always been sacrificed to cer-
tainty and precision. The Book of Definitions, therefore, must not be
consulted as a dictionary of the language of the country, but of that
of the Code, whenever the uncertainty of the former created the neces-
sity of declaring in what sense the term is employed.
I will not attempt to conceal from the general assembly, the extreme
difficulty of this part of my labour; more than any other, it exercised
my closest and intensest attention, and I think it has not been exercised
in vain. I think so, not only from the satisfaction of my own mind,
but from the approbation of men who have had the kindness to employ
high intellect, enforced by official duty, to the task of close thinking on
legal subjects, in trying to detect the errors of that part of the work:
and who have given me leave to say, that they have found none. These
venerable names, with the opinions they have given, will be found in
the appendix. But whatever weight is due to this authority, I disavow
any design of sheltering myself or any thing I have done, behind it. It
is the duty of the general assembly to judge for themselves, and for the
people to whom they are accountable. To their judgment I submit.
Another advantage of this feature in the system is this; that however
imperfect it may be at present, the law for giving effect to the code
contains enactments for its amendment and progression towards that
improvement, which all your penal laws, by this arrangement, must
gradually acquire.
The other articles of this chapter need no comment.
We come now to the Code itself. The first chapter of the first book
contains General Provisions. Most of them are in exact conformity
with what is generally supposed to be the present laws, but so expressed
as to leave no room for doubt or cavil; some of them, however, deserve
particular notice. The evil already pointed out, attending the passage
of successive penal laws on the same subject, without repealing the first,
is one so likely to recur, that some general rules were thought necessary
to regulate the effect of such legislation. Reasoning from what ought
to be, rather than from what is, it might be supposed that when a new
penalty was created without repealing a former law that had, also, im-
posed one, the legislature intended to preserve both, and such has hither-
to been the construction; but, in fact, it is the very reverse; the new
penalty is, nine times in ten, intended as a substitute, and the old law
is suffered to stand merely through haste or negligence. An article
provides for this, and declares that in such case, unless the contrary is
expressed, the former penalty shall be abrogated.
A more important disposition is that which declares that there shall
be but one mode of construing penal laws, according to the plain import
of the words they employ, and expressly abolishes what are called fa-
vourable and strict constructions; in other words, permitting the court
sometimes to say that the law means more, sometimes less, than the
legislature intended. Common sense acknowledges but the one mode,
when the language is clear and explicit. When the law is ambiguous,
another article provides the remedy. Such a law, if it purport to im-
pose a penalty, is void; and he who is accused of contravening it, must
be acquitted. In the fear, however, that such general terms may some-
140
INTRODUCTORY REPORT TO
times be used as may include an act which the legislature could not
have intended to forbid, an article has been added since the code was
printed, specially providing, that in such cases, the defendant must be
acquitted, and the case reported to the legislature; who may then, more
explicitly declare their will to govern future cases. A perusal of
the statute against concealed weapons, will exemplify the necessity
of this provision. There, a knife is expressly called a weapon, and
the "wearing it in the coat, or any place about the wearer, so that
it do not appear in full view," makes him liable to a penalty, and
subjects him to search; wearing a penknife in a man's waistcoat
pocket, is an offence within the plain meaning of the words of the
statute, employed in their usual sense; and yet, it evidently could not
be the intent of the legislature to make this an offence. Other cases of
the like kind may occur, and the law should provide against inaccu-
racy, as well as grosser faults.
Another article expressly forbids all convictions for constructive
offences; that is, offences that are created by courts, and not by the
legislature. The latter alone are the proper organ for declaring what acts
or omissions shall be punished, and the text forbids the judiciary, for
reasons which it assigns, from interfering in their functions. Whether
our courts have extended any offences, by construction, is not known,
nor can it be until some means are taken to report and publish their
decisions in criminal cases; but it is certain that they adopt the con-
structive larcenies and forgeries of the English law(a), and there is
every reason to suppose that the same causes will produce the same
effects. Those which we have seen in another country, where the
state of society and manners are similar to our own, we may expect
here. It will not be denied, that England has suffered the most cruel
evils by this exercise of judicial power. The restriction, then, in the
text was necessary. We may, hereafter, have a judge who may exer-
cise his constructive ingenuity upon murders or burglary, or other of
fences, as Jefferies did upon treasons. Wise laws must look beyond the
present day; and it is their office to foresee and counteract the effects
of propensities which tend to disturb or corrupt the order of society.
The second chapter of this book contains provisions which, relating
solely to prosecutions and trials, are enlarged on in the text of the code
of procedure, and will be elucidated in the introductory report to that
code. One only of these will be mentioned here, that relating to the
trial by jury, and this only for the purpose of referring to what has been
said on that subject in the first report, to which I need add nothing, and
from which all my subsequent reflections have suggested nothing to
retrench.
The third chapter contains the general provisions which relate to
persons amenable to the penal laws. Most of them have no novelty to
call for any explanation-some, however, do. Citizens and inhabitants
of the state may be punished, as well for acts done out of the state as
(a) If one lends a horse to another, who rides away with him, Blackstone declares it is
no larceny in 1779; and in 1786, by a construction never before heard of, it was declared to
be a larceny. Forgery was originally confined to making the deed of another. It has been
since extended to a very different offence, making a deed in the true name, the offender re-
presenting himself to be another person.
THE CODE OF CRIMES AND PUNISHMENTS.
141
for them within; but in the former case, only when it is so expressly
declared. The state has an undoubted right to forbid and punish any
acts done out of its jurisdiction, which are calculated to produce an in-
jury to its government or the rights of its citizens. On this principle
the government of the United States made it penal(a) for any citizen
of the United States, although residing abroad, to carry on any corres-
pondence with a foreign government, for the purpose of influencing its
measures with respect to the United States; and also under a high pen-
alty, forbids any citizen, without its limits, from fitting out any wessel
to cruise on a power with whom (6) they are at peace. The general
assembly will find this principle acted upon in that part of the code
which relates to fraudulent insurances.
Children below nine years of age, cannot, as formerly, be convicted
of any crime; nor between that and fifteen, unless on proof of sufficient
understanding to know the nature of an offence. The crimes of children
of that age are those of their parents or adult associates; and whatever
may be the apparent depravity of an infant below that age, the true
correction is education and restraint. These are fully provided for by
the Code of Prison Discipline; and the subject of juvenile criminality
is so fully discussed in the Introductory Report to that code, that it is
omitted here.
Offences committed by married women, under the influence or by
the command of their husbands, and by minors under the like control
of any one to whom he owes obedience, or by whom he may be sup-
posed to be influenced, present strong cases of extenuation on the one
part, and aggravation on the other, which, in this chapter, are provided
for by a correspondent increase and diminution of punishment: this is
new, but its justice must be so apparent as to need no comment.
There is some analogy between these cases and that of a soldier.
Taught by the severest discipline to obey, without examination, the
commands of superiors, it appeared to me that while such command
ought not to exempt him from punishment for the commission of a
crime, that there would be some cruelty and injustice in making him
liable for acts committed by such command, which are only misde-
meanors. In these cases, officers giving or transmitting such illegal
orders, are alone made liable. It is no objection to this, that the of-
ficer may escape by leaving the state; so may the man; so may any
delinquent.
The circumstances are pointed out in this chapter, and are again en-
larged on in another part of the code, which shall be a justification for
executing the order of a magistrate, and for doing unlawful acts under
duress. The want of precise, intelligible and accessible rules on both
these subjects, has led to much litigation and many prosecutions. It
is hoped that those laid down in this chapter, are sufficiently explicit
to avoid many of these evils.
On the propriety of the seventeenth article of this chapter, relative
to acts done by mistake or accident, which would have been offences
had they been intended, there may be some doubts. There is none
that it is in apparent contradiction to the other general provision, that
(a) Act for punishing certain crimes therein specified, 30th January 1799.
(b) Act of 20th April 1818, sect 4.
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INTRODUCTORY REPORT TO
•
the will must concur with the act in order to constitute an offence.
Here there was both an illegal act and the will to do one, but they did
not concur. The will was to do one illegal act; the execution was that
of another; therefore, the contradiction still remains. It is supposed,
however, to be justified on two grounds; one, that the want of ordinary
care and attention supplies the place of malice or design; the other, that
there seems to be a propriety in distinguishing between negligent acts,
occasioned by a design to do mischief, although not that really done,
and the same negligent act done without any intent whatever to injure.
It will be observed that article provides, that these provisions do not
govern the case of homicide, for which particular rules in this respect
are provided under the proper head; and that there are other limita-
tions reducing the penalty when the intent was to commit a misdemea-
nor only. Yet, with all this, I am bound to say, that although I think
these articles can practically produce no injustice, yet I wish I could
have put them in such a shape as to avoid an apparent conflict with
principle. They soften, however, the rigour of the present law, which
punishes all homicide as murder, although there was no intent to kill
or even to injure, if it is done in the attempt to commit a felony.
The attempt to commit an offence, which fails from some circum-
stance not dependent on the will of the offender, is also made punish-
able, because every attempt, although it fail of success, must create
alarm, which, of itself, is an injury, and the moral guilt of the offen-
der is the same as if he had succeeded. Moral guilt must be united
to injury in order to justify punishment; but as the injury is not, in
the case before us, as great as if the act had been consummated, only
half the punishment is awarded.
The fith chapter relates to a repetition of offences, and the increased
punishment which it directs to be inflicted on those who are not de-
terred by one punishment from the commission of other crimes, seems
so necessary and reasonable, that it may pass without observation.
The sixth requires more consideration. It contains general rules.
respecting principals, accomplices, and accessaries, making some ma-
terial changes; to the introduction of which, however, I have heard.
of no objection. Its first operation is by defining distinctly who shall
be principals and accomplices, to avoid the continual repetition con-
sidered to be necessary now in all our penal statues, such as this in the
laws against forgery "Whoever shall forge or counterfeit, or cause
or procure to be forged or counterfeited, or shall willingly aid or
assist in the forging or counterfeiting," &c. One general provision,
applicable to all cases, will render, in future, the use of all these words
unnecessary. The persons described by them are principal offenders
or accomplices; they both incur the same punishment, because the
guilt is the same, and they cause the same injury; but the offences are
distinguished, and it is thought that the line between them is so accu-
rately marked that no mistake of consequence can occur. They are
distinguished, because, although the guilt, the injury and the punishment
is the same, yet the act is different, and it is of great consequence, in
penal law, not to confound in one denomination acts of a different na-
ture. To counsel the commission of a crime, is certainly a very dif-
ferent act, requiring different evidence from that of actually commit-
ting it.
THE CODE OF CRIMES AND PUNISHMENTS.
143
The law and the denomination is also somewhat altered, and it seems
to me not without necessity. Our law, as it now stands, has two
species of accessaries; one "before the fact," the other "after the
fact;" but having so little resemblance either in their definition, in
their guilt, or in any other circumstance, that it was deemed expedient
to dissolve the connexion, and place accessaries before the fact in the
class of accomplices, a denomination which implies closer connexion
with the guilt of the principal offender than the accessary, who, as the
name implies, can only become criminal after the offence has been
counselled by the accomplice and executed by the principal. This last
offence consists in aiding the offender to escape from justice, a fault
that may have many palliating circumstances, originating in the best
feelings of our nature. That of the accomplice can have none. There-
fore, the punishment is very different; and as those feelings are strong-
est in certain close connexions, formed as well by society as nature,
and which should not be broken without evident necessity by the laws,
it is further provided, that certain near connexions, who may follow
up this impulse of nature by aiding another in his endeavours to avoid
the pain or disgrace of punishment, should not incur this penalty.
In affixing punishments, we should compare the evil of the offence
with that necessarily caused by the punishment, and decide as the ba-
lance shall incline. In this case the evil of the offence is now and then
the escape of an offender; a rare event, and not of much moment,
because, by his escape from the punishment ordained by the laws, he
inflicts on himself that of banishment, which answers two good ends:
it deters almost as effectually as the regular punishment; it rids you
of the offender, and prevents a repetition of his offence; and it fails
only in the chance of reformation, which a good system might pro-
mise; but which, under your present laws, could not be hoped for.
If the punishment is incurred, its evil is the conflict between human
laws, and in cases of near ties of blood, those which God has implant-
ed in our hearts, in which the former will never prevail, but will be
despised for their inefficacy, or abhorred if they are carried into exe-
cution. The same observation that was made to show the propriety
and convenience of establishing a general rule applying to accomplices
in all offences, applies also to accessaries. By the present laws, as has
been already observed, accessaries after the fact, in burglary, are sub-
ject to a much heavier penalty than those in murder; and owing to
the application of the term to two distinct offences, it is doubtful whe-
ther a different and greater punishment is not also designated in cases.
of larceny; for the term used in the law, which directs whipping as
the punishment for accessaries in that offence, does not distinguish
whether those before, or after the fact are intended.
The whole of this first book, of which I have just finished the very
hasty review, is new. In no other code, that I have seen, has the
legislator entered into a full and frank explanation with the people;
told them what he intended to do, and for what reason; marked out
the limits of the right course, and bade them observe whether he ex-
ceeded them. In no other has he treated them, in short, likę reason-
able beings, and told them to reflect as well as obey. The whole of
this book was presented with the first report, published by your pre-
decessors, with the stamp of their unanimous approbation, and has
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INTRODUCTORY REPORT TO
been received, both in Europe and the United States, with the most
favourable judgment of the profession.
The subject of the second book of this code is offences and punish-
ments, and its first title treats of their general nature and divisions.
Its purpose is chiefly that of order and arrangement; an object of
more consequence than the confused legislation that has generally pre-
vailed would lead us to suppose. Irregularity is not only an evil in
itself, by the loss of time and the errors which it necessarily occasions,
but it leads to greater evils; to an ignorance of the laws, because if
any difficulty is created in finding them, it is not very frequently
overcome. The slightest obstacle is sufficient to make us give up the
search for that which does not, and which we flatter ourselves will not,
inmmediately concern us; and there is no obstacle more discouraging
than the want of arrangement. That which is proposed is simple.
The great divisions are few, and their subdivisions grow naturally out
of them. An offence is first defined to be an act or omission which
is forbidden by a positive law, under the sanction of a penalty. The
terms of this definition exclude all offences against unwritten law,
all offences growing out of a construction of any law, all con-
travention of any law which has not provided a penalty for its breach.
But it is not enough to know, generally, what are offences. They
must, from their nature, be different in degree, and affect different
objects. These two considerations call for two general divisions. By
the first, which marks the degree of offences, they are divided into
CRIMES and MISDEMEANORS; the former designating those which may
be punished by imprisonment in the Penitentiary, or by a forfeiture
of any civil or political right; the latter, all other offences. These
terms have been retained rather than adopted. In the English law
they have generally an analogous, although somewhat indefinite, signi-
fication. "Crime, properly speaking," according to the language of Black-
stone(a), "being used to denote such offences as are of a deeper dye;
while smaller faults, and omissions of less consequence, are comprised
under the gentler name of misdemeanors." While the terms were
retained, it was necessary that a precise idea should be affixed to them.
Where is the line to be drawn between offences of a deeper dye and
those of less consequence? How deep the dye must be to give to an
offence the colour of a crime, or how little the consequence which is to
sink its importance into a misdemeanor, the learned commentator does
not inform us. Perjury is an offence of deeper dye than an assault;
yet, according to Christian(b), they are both misdemeanors.
ceny is an offence of less consequence than murder; yet they are both
crimes. The code gives a precise rule, drawn from the nature of the
punishment; one that produces no violent change in the usual mean-
ing of the words, but gives them that precision which is necessary in
every term employed in a law.
Lar-
The character drawn from the object against which the offence is
directed, gives us the second general division into public and private
offences. Here it is impossible that the line of demarcation should be
very distinct. Offences which chiefly injure society at large, and come
(a) Black. Com. 5.
(b) Note to Blackstone, p. 5.
THE CODE OF CRIMES AND PUNISHMENTS.
145
under the first denomination, can rarely be committed without also
affecting private rights; nor, in general, can any injury be offered to
an individual that does not directly, or in a remote degree, affect the well-
being of the community. But it ought to be distinctly understood, that
this division is entirely for the sake of order and arrangement in fram-
ing the code, and that no mistake in arranging a particular offence, un-
der one or the other of these heads, can be productive of the least in-
jury. No act can be prosecuted as a public or private offence; the
terms are unknown in the procedure, they do not affect the form or
the substance, and are merely labels affixed to each offence, that
they may be arranged in the proper place, and each offence is defined
without any relation to its arrangement under one or the other of these
denominations. The same observation applies to the different subdi-
visions; they give names to the different titles under which the parti-
cular offences are found, but no one can any more be indicted for an
offence against the sovereign power of the state, calling it by that name
only, than he could for a public offence by that designation; the par-
ticular act forbidden by the law, must be designated, because that
alone constitutes the offence. To prevent any error, all this is concise-
ly expressed in the text of the code.
The second chapter of this book has the nature and general divi-
sions of punishments for its object. Much of what may be thought
necessary comment on this, has been anticipated in the preceding dis-
cussion on the infliction of death, and for a still greater portion, we
must refer to the introductory report on the Code of Prison Discipline.
Here, it will be proper to remark on the general features of the scale
of punishments that are provided for different offences.
There is an evident distinction in the nature of offences, which de-
mands a correspondent one in punishments. Some show an habitual
depravity, which requires long discipline to amend; others are the effect
of an occasional disregard of the rights of others, which may be cor-
rected by the privation, pain, or disrepute of the punishment, the re-
membrance of which may prevent repetition, and the example deter
from imitation. On this distinction rests the system of punishments.
Penitentiary imprisonment being designated for all offences of the first
description, and the other penalties for the others. Of these last, simple
imprisonment in close custody is one which is the most frequently em-
ployed, because it is applicable to offences which, although they do not
evince the degree of depravity which characterises those punishable in
the penitentiary, yet require not only correction, but restraint. In these
cases solitude is administered long enough to give time for reflection,
and to operate as a punishment, but is not prolonged, as in penitentiary
confinement, to the period which is there necessary to destroy vicious
habits and acquire those of honest industry. It is the connecting link
between simple imprisonment, in which nothing but a temporary and
slight correction is thought necessary, and the strong remedy of solitude
and labour.
Liberty being the best enjoyment of a citizen, its privation, in differ-
ent degrees, was thought the fittest punishment for faults which disturb
social order, by which only it can be preserved; and the good citizen
will value the greatest of all blessings the more, when he sees that its
enjoyment is inseparably attached to an observance of the laws, and its
loss generally the consequence of their breach.
T
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But to some, the privation of personal liberty would be a severer
punishment than to others, for the same offence, and for some infractions
it would be too great for the offence. Recourse in these cases must,
therefore, be had to property, the next great source of human happi-
ness; and its curtailment by fines, forms another grade in the scale of
penalties. The principles which have been applied to adapt them to
different offences have been already explained. It need only be added
here, that in some designated cases the necessary discretion of adopt-
ing one or the other, or both, of these punishments, simple imprison-
ment and fine, is vested in the judge, within certain limits. Because,
in all those cases there must be a correction for the offence; and the
judge only can determine, from the circumstances of the party, whether
the forfeiture of property would operate as such correction, or whether
a temporary privation of liberty ought not to be substituted or added.
It has been wisely ordered, that liberty and property, although the
principal sources of our enjoyment, should lose the greatest part of their
value, if not attended with personal consideration, or the good opinion
of those with whom we are associated, and the equal enjoyment of all
those rights to which they are entitled. This social feeling gives to
the legislator another hold upon the citizen in order to force an ob-
servance of the laws, by threatening for their breach a privation of
those rights, and of the confidence and consideration by which alone
they can be obtained. This forms the third and only remaining class
of punishments-privation of office, of civil, of political rights, either
for a time or perpetually.
This is all the penal machinery that is employed in the code either
for punishment, repression, example, reformation, or prevention. The
infliction of bodily pain by mutilation or stripes, indelible stigmas, ex-
posure in the pillory, the stocks, or by public labour, are banished from
the code for reasons that are conclusive, and which have once been
presented to the legislature and received their approbation. All of
them are at war with every principle on which this system is founded;
and if either is retained, no good result can be expected from the adop-
tion of it. But there is a reason drawn from our state of society so
conclusive against the last, that it cannot be resorted to without danger
of the most serious kind. There is a line of demarcation, which it
would be rash in the extreme to destroy even in punishments; and the
sight of a freeman performing the forced labour, or suffering under the
stripes usually inflicted on the slave, must give rise to ideas of the most
insubordinate nature. A false economy only could suggest the repeti-
tion of an experiment which has every where failed, every where pro-
duced increase of misery, degradation and crime; and here might be
the cause of evils worse than all these combined.
This part of the plan has, in a very flattering notice taken of it in
England, been considered as defective, because it does not combine
satisfaction to the party injured by the offence, with the punishment
inflicted by public justice.
This idea has been a favourite one with many criminalists. It has been
embodied in the French, and some other codes, and once found a place
in our laws. But, however plausible the reasons for its adoption may
appear, neither the principle on which the system was founded, nor the
experience of its effects, would permit me to recommend it.
THE CODE OF CRIMES AND PUNISHMENTS.
147
The distinction between penal and civil laws appears to me to be this,
that the first, from their very nature, exclude the idea of private com-
pensation, whereas it is the sole object of the other in all cases of injury;
if it were not so, public justice would depend on the vindictive or in-
terested passions for its execution, or might be defeated by the apathy
of the individual; and if the old system of pecuniary satisfaction for
crimes were not renewed by the laws, it would be by stipulations be-
tween the parties. This has been so well acknowledged, that, in most
laws, it has been made criminal for the injured party to interfere be-
tween the society and the offender against its laws; and after a prose-
cution has begun, it is only in cases of small importance that the system
of compromise is allowed to act.
In
The foundation of all penal law then is, that the society has received
an injury by the breach of its rules. All violations of right are not
brought within their purview; those which are not, remain to be com-
pensated by the civil law. Over these it has an exclusive jurisdiction;
and although offences for breaches of penal law generally are accom-
panied by, or consist of, a private injury, yet the rights acquired to
the society, and to the individual, by this breach, are totally distinct.
The last can only seek for compensation; the first for something else,
which may be according to circumstances, either less or more.
case of theft, the owner has a right to ask for restoration or compensa-
tion. The society has a right to inflict punishment independent of
that restoration. So far has this been carried by the common law,
that by one of its extraordinary fictions the private right is merged, as
they call it, in the felony, and the individual loses the right to his pro-
perty, as soon as it can be proved that it was stolen from him; that is
to say, when that is proven, which shows conclusively that he has at
title to it. This distinction existing then in their very nature between
civil and penal law, the question is, whether it is better to combine the
two operations, so as by the same suit to give satisfaction and inflict.
punishment? This is a question of mere convenience; and it is to be
answered, better perhaps, by experience than by reasoning. If it is
to be effected so as to preclude the party from his civil suit, he must
be represented in the prosecution. This, in theory, would disturb the
order of proceeding, and by confounding the two jurisdictions, cause
confusion in our ideas of the nature of public justice, when we saw it
so much identified with private interest. It must necessarily produce
some irregularity. The wish or the interest of the public prosecutor
might be, to bring on the trial when the private party was not ready to
show the extent of his loss, and there would be either delay or injustice.
It would lessen the dignity of the tribunals of public justice, by mak-
ing them the arena in which contests were carried on for mere private
rights. The attorney for the party in the civil side must necessarily
take a part in the conduct of the cause; and the course he thought
best, might differ from that preferred by the public prosecutor. This
collision must produce disputes, and disputes between those concerned in
the administration of justice, ought to be avoided. By not suffering the
person injured to be made a party, these inconveniences indeed may be
avoided, but then you commit the greater injustice of deciding on his
interests without hearing him. These conclusions appear to me to be
confirmed by experience on both modes of procedure. In France,
the person injured may make himself a party; but as far as a foreigner
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can judge from the reports of the cases, most of the inconveniences,
which might be anticipated, have seemed to follow. And in our state,
where the damages were directed to be inquired (a) of by the jury that
tried the cause, merely on the prayer of the party, it was found so in-
convenient in practice, that the law was soon afterwards repealed.
For these reasons it has been thought most consonant to principle,
as well as most convenient in practice, to carry on the prosecution
entirely unconnected with the private suit; but, in all cases, to permit
the party injured to sue for his damages, and whenever a claim for a
fine and those damages come in collision, to give a preference to the
private claim.
The discussion of the nature and effects of different punishments
has been necessarily irregular. Its anticipation could not be avoided
in some degree, when we considered the great characteristic of the
code—the abolition of the penalty of death; and a very great part is
under an equal necessity postponed, to be treated of in the Introductory
Report to the Code of Prison Discipline.
I now proceed to the consideration of the important titles which
define the different offences, and assign to each its appropriate punish-
ment.
The first class contains those which affect the sovereign power of
the state, and first in that class stands the crime of treason. This is
defined by the constitution, and therefore the code could do no more
than repeat the definition. But the same offence has the same defi-
nition in the constitution of the United States, and in both instruments
is described as "levying war" and "adhering to enemies;" but from
the nature of the federal union, a levy of war against one member
of the union is a levy of war against the whole; therefore it is con-
cluded, that treason against the state, being treason against the United
States, it is to be punished under their laws and in their courts.
There are, however, other offences which affect the sovereignty of
the state, which do not amount to levying war or adhering to its ene-
mies. The first of these is designated under the name of sedition.
It is defined as an attempt by FORCE OF ARMS to dismember the state,
or to subvert or change the constitution thereof. This is one of the
highest crimes that can be committed; and it must be observed, that
here, and elsewhere in this report, the degree of crime is measured by
considering as well the moral depravity which it exhibits as the injury
it occasions to the community. In this view it stands high in the scale.
of offences, and the highest punishment (imprisonment for life in the
penitentiary) is awarded to it. A milder punishment is designated
for him who shall excite others to commit this crime by writing or ver-
bally. The employment of force is a necessary ingredient in the first
offence, and expressly exciting others to use force in the second. Neither
of these offences are provided for by our present laws.
Next in place, but with scarcely any difference in degree, is the crime
of insurrection, which is one of those that have received the attention
of our legislature; and, indeed, is one of high consequence in the actual
state of our population. It is more precisely defined in the code. It
consists, in aiding by a freeman, for this code extends to no others,
in any insurrection of slaves against the free inhabitants of the state, or
(a) Act of 1805, section 39.
THE CODE OF CRIMES AND PUNISHMENTS.
149
assisting at an assembly of slaves for the purpose of promoting such
insurrection, or exciting them to it. It is punished by the highest
penalty of the law-penitentiary imprisonment for life. To prevent
any errors, all the material words that admit of different constructions
in this, or other descriptions of crimes, are clearly defined. To endea-
vour to make the slaves discontented with their lot, without actually
exciting to insurrection, is also punished by a fine and imprisonment.
Next in order, after offences against the sovereignty of the state, are
those which affect its legislative power. The offences arranged under
this title are-force directed against either house of the general as-
sembly to dissolve their session, prevent their meeting, or direct their
proceeding; threats of violence to a member to influence his vote, or
actual violence in consequence of his official conduct; bribing or at-
tempting to bribe, any such member, and the receipt of a bribe by him.
These are forbidden under appropriate penalties, and with a proper
definition of each offence. This class of offences has not yet attracted
legislative attention, perhaps, because it was thought that some of them
might be sufficiently punished or repressed in the exercise of the au-
thority which is supposed to be inherent in all similar bodies, to punish
contempts, without entering into that question which, under our con-
stitution, is not very easily decided; it may be sufficient to say, that if
that power extends beyond the right of removing any immediate ob-
stacle to the proceedings of either house, and of enforcing its constitu-
tional orders, it yet has not the power necessary for the occasion, inas-
much as the warmest partisans for the doctrine of contempts, do not
contend, that any punishment the house can inflict, can exceed imprison-
ment during the session. It seems therefore proper, that an adequate
penalty should be provided for the high offences mentioned in this title;
and it is moreover consistent with the principles of our government,
that every offence should be defined, and that the right of trial by jury,
secured by the constitution, should be preserved inviolate. These are
effected by the articles of this title, at the same time that whatever
privilege is constitutionally vested in either house, remains unimpaired.
Giving, offering and accepting a bribe are among the offences enume-
rated, and the punishment here assigned to it, is a suspension of politi-
cal rights for five years, or fine equal to four times the amount of the
bribe, and penitentiary imprisonment from six to twelve months for the
person offering, and forfeiture of political rights, and fine equal to five
times the amount of the bribe, for him who accepts it. The difference
in the punishment was calculated to suit the probable situation of the
several offenders, the tempter being treated more severely by the im-
prisonment, than him who yields to it; and the forfeiture of political
rights is denounced, in this case, instead of a suspension; because, he
who has once yielded to such a temptation, ought never again to be
trusted with political power. Where the value of the bribe offered or
accepted cannot be discovered, a standard rule is given in all similar
cases for the measure of the fine.
Under the head of offences against the executive power, we have
several highly injurious and immoral acts which are not now punishable
by any of our statutes. Bribery is confined by the law of 1818, the
only act we have on the subject, to bribing or offering to bribe, a “judge
or other person concerned in the administration of justice," leaving the
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accepting a bribe by such judge or person so employed, and the giving,
offering, or receiving a bribe by any other totally unprovided for. By
this chapter, it is extended to all executive officers, and the following
offences, hitherto unnoticed, are added: doing official acts before the
oaths and the security required by law are taken and furnished; forcible
opposition to official acts; corruptly agreeing to make appointments, or
do any other official act in consideration of an advantage(a) not allowed
by law, and not being an emolument; extortion, which is fully defined;
receiving an emolument not allowed, or greater than is allowed by law
for doing official acts; committing any act which is an offence under
colour of office; negligent performance of official acts, by which injury
is received; all these are made offences, and punished by penalties.
which are supposed to be appropriate and commensurate to them; and
articles are added extending these penalties to deputies, to persons.
exercising the office, although there may be an informality in their
appointments; and making principals answerable for the acts of the
deputy when they are done with his consent. The officers of corpora-
tions are also included, as well as those exercising private offices. This
is an important title, and comprehends several offences, a few only of
which will come within the purview of the existing statutes, under the
loose description of misdemeanor in office.
First in rank under the head of offences affecting the judiciary power,
are those relating to judges and juries, and of them the most important.
are those which may be committed by these functionaries themselves.
The importance of these duties, the dreadful consequences of neglect
or corruption in the performance of them, has attached, in all coun-
tries, a sanctity to the office of judge, which makes that a crime with
him, which would be a venial fault in another. In all ages, therefore,
while the public veneration has been readily yielded to the upright
magistrate, the unjust judge has been the universal object of detestation
and contempt. The highest rewards have not been deemed too great
for his merits, nor the most cruel punishments too severe for his faults.
Heaven itself must have inspired our British ancestors with the idea
of separating the decision of law from that of fact; for nothing could,
with so much effect, lessen the danger of corruption. The jury, un-
approachable by seduction, because not called into existence in time for
it to operate upon them; the judge, unable for the most part to decide
without their intervention. But although this distribution leaves to
neither the absolute power over the life or fortune or reputation that
is put in the law's jeopardy—yet each of them have sufficient to make
it necessary that their integrity should be protected from temptation,
and their sense of duty stimulated, by the law. There are some who
think, that with respect to the judicial office, it would be degrad-
ed by enactments which suppose the possibility of its high func-
tionaries being influenced by such inducements as would bias other
men. Confidence, they argue, produces integrity, suspicion provokes
to guilt; leave the high characters of your judges to be sustained by
their own sense of honour, and do not fetter them by any of the degrad-
ing restrictions and penalties, that you devise to bind other officers.
(a) For the understanding of this article, recourse must be had to the definitions of the
words in italics.
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151
These have been the remarks suggested by men whose opinions de-
serve attention, on the chapter now under consideration; and they
were repeated so earnestly, that I yielded more, I think, to respect
than to conviction, and agreed to suppress the third article of this sec-
tion, which prohibits a judge from receiving gifts of any assignable va-
lue, unless by will, or from a near relation. The reasons urged against
it have been stated. Those which induced me, at first, to introduce
the clause shall be given, that the general assembly may judge of the
propriety of reinstating the article which they will find in the first
printed copies.
I acknowledge the force of the maxim, that confidence in generous
minds begets a disposition to merit it; but I deny the propriety of its
general application. The penalties of law are founded on a supposition,
that without them, its precepts would not be fulfilled. Could we count
on that generous disposition which the objection supposes, there
would be no need of any sanction to our laws. The legislator need
only point out his will and express his confidence in the integrity of those
to whom it was directed, and the work of legislation would be done.
But the argument is not pressed so far; it is acknowledged that penal-
ties are necessary to insure obedience in ordinary cases; but it is said,
that judges form an honourable exception; restrain all the rest of the
world by the fear of punishment-trust to the integrity of the judge
for the performance of his duty. What, will you impose no restraint,
no impeachment for corruption, no indictment for bribery? Yes,
these we will allow-but he must not be restrained from accepting
presents as the testimonials of friendship, which are no more than
common courtesies of life. Now, if you can think it necessary to
guard against the gross corruption of direct bribery, why will you
permit a practice which is the most common mode of effecting it? Not
to speak of their being made the vehicle for the more glaring crimes,
their favourable effect on the mind of man, is evident to any one who
has the slightest knowledge of the world. Received as tokens of kind-
ness at first, their slight value excites no suspicion; they are multiplied;
their value is increased, and the obligation goes on augmenting until it can
only be discharged by a favourable decree. But the practice ought to
be forbidden, if it should have no other effect than that of exciting sus-
picion. If the judge has been in the habit of receiving presents of game
or liquors from a suitor who gains his cause, the loser will not fail to at-
tribute it to the flavour of the venison or the exquisite taste of the
wine. Nor is the inhibition either new, or considered as derogatory
to officers of the highest trust. It is a constitutional provision that no
one, holding an office of trust or profit under the United States, shall
accept any presents from a foreign power. If this does not degrade
the ambassador, why should a similar one degrade the judge? Besides,
be consistent. You have two sets of judges. If those who determine
the fact, when they are exhausted with hunger and fatigue, receive the
slightest refreshment from one of the parties, you dishonour them by
setting aside their verdict, as being corruptly procured, and often punish
them for misconduct; and yet you think it degrading to the other
class of judges, to prevent them receiving gifts of much greater value.
The other acts that are made punishable by this section are describ-
ed with pecision, so as neither to subject the officer to vexatious pro-
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INTRODUCTORY REPORT TO
secutions, nor to suffer any judicial oppression or malfeasance to es-
cape the animadversion of the law. This was the more necessary,
because, by our statutes, although it is a crime to offer or give a bribe
to a judge, there is no penalty denounced against him for accepting
it(a), unless it be under the vague denomination of misdemeanor(b);
to understand which, we have not even the resource of a reference to
the English law, for the statute which creates the offence was passed
since the year 1805, and contains no reference to that law; and if we
had, the matter would not much be mended, as we have seen in for-
mer parts of this report(c). When a word is used in legislation, that
is neither technical nor explained in the law, it must of course be un-
derstood according to the signification it has in common parlance; but
there can be no technical meaning affixed to this word, because there
is no body of laws to which we are or can be referred for its explana-
tion. We have no common law, and the statute refers to none, there-
fore, it must have the same meaning here that it would in common
conversation. What is that? Both etymology and usage give the an-
swer; any misconduct whatever. A misdemeanor in office, then,
is any demeanor that is contrary to official duty. Our present law,
therefore, is infinitely more strict than that which is offered as a sub-
stitute; without defining any particular misconduct, by a sweeping
clause it makes the minutest inattention punishable by fine, imprison-
ment, loss of office, and incapacity ever to hold one. A rude or has-
ty word to an advocate, a suitor, or a witness, is misconduct, and so is
corruption-both come within the meaning which etymology gives to
misdemeanor. Should a judge do that for which he would fine a
juror, come too late into court-should he yawn or doze on his bench
during the sixth hour of a dull speech, the affronted orator would tax
him with misconduct, and he might be vexed, although a jury probably
might excuse him for indulging so natural a propensity; more espe-
cially if the speaker were one of those, like Virgil's priest-
"Spargere qui somnos, manu, cantuque, solebat."
Instead, then, of taxing the provisions of this chapter with improper
hostility to the judicial character, and with imposing too great restraint
upon the exercise of its functions, it ought to be considered, as it truly
is, a relief from the danger of an ambiguous law, that creates a penalty
which might, without departing from the words of the statute, be made
by malice or ignorance to affect the fortune, liberty and reputation of
a respectable magistrate, for a trifling misdemeanor. In this section
of the code, on the contrary, every thing is defined-nothing made
punishable but what is injurious, and the penalties are suited to the
offence. In the first copy there was a material omission, by which
a judge was inhibited from advising a suit, or giving counsel relative
to its management, without making the necessary exception of cases of
near relations, or any other in which he could not sit as a judge. This
error is corrected.
By this section the necessary penalties are imposed on such miscon-
duct of jurors as by our present law is either not punishable at all, or is
(a) Act of 19th March, 1818, sect. 5.
(c) Ante, p. 85.
(b) Act of 7th June, 1806, sect. 5.
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153
so in a way that precludes the person accused from the benefit of a trial
by jury, and the other advantages given by law in other prosecutions.
As, by the section thus reviewed, judges and jurors are restrained by
penalties from acts contrary to their duty, so in the next they are pro-
tected from all attempts, by bribery, violence or improper persuasion,
to seduce or force them from its performance; and an article gives a
precise rule on a subject left very much at discretion by our present -
practice. I mean the publication of proceedings in court during the
pendency of a trial. It is believed, that the provision will secure the
dignity of the court, the rights of the parties, and the liberty of the
press.
The second chapter of this title is intended to prevent the bribery of
ministerial officers of justice, and forcible opposition to them in the exe-
cution of their duties. The laws which embrace those offences, did
not seem to be sufficiently descriptive of the acts which they forbid,
and are totally silent as to a number of circumstances which ought
to be explained. What are official acts; what forms the judicial orders
must be clothed with to make opposition to them an offence; in what
cases and to what degree opposition is lawful; what degree of opposi-
tion incurs the penalty; what ought to be the conduct of the officer in
the performance of his duty, so as to entitle him to the protection of
the law, or to make him forfeit it; are deficiencies in the present
law, which are supplied by that which is offered.
Connected with this is the chapter on Rescue, to which nearly the
same observations apply, with this additional reason for the amendment
of the present law-that although it punishes the rescue of a person
committed for, or convicted of, any other than a capital offence, yet a
rescue for this last offence is only made punishable where the person
rescued is indicted or convicted; but leaves the case of his rescue after
commitment, but before he is indicted, wholly unprovided for(a). This
error is corrected, and other provisions added, to make the law explicit
and equal in its operation. In order to effect this latter object, the
punishment, with some modifications to adapt it to particular cases, is
one-half of that to which the party rescued would have been liable had he
been convicted of the offence for which he was in custody, and a certain
fine and imprisonment if he were confined on a civil suit.
Escape and breach of prison, are offences analogous to that of rescue.
Adopting the principle of the English law, this offence, if committed
without violence, is punished by a light fine and imprisonment. By
our present law it is not provided against at all. If committed with
violence, it incurs the punishment, and comes under the description of
a forcible opposition to the officers of justice. If the escape is aided,
or voluntarily permitted, by the person having charge of the accused,
he incurs one half the punishment which might have been inflicted for
the offence with which the accused was charged. The English law
makes the punishment of the officer depend, in a great measure, on the
conviction of the person escaping; for if such conviction take place, he
suffers the same punishment with the delinquent; if he be acquitted or
not taken, the keeper only suffers fine and imprisonment as for a mis-
demeanor. This rule, it was thought, would, in many cases, defeat
the ends of justice. The risk of fine and imprisonment was not thought
(a) Act 4th May 1805, section 26, as given in Martin's Digest, 2d vol. 240.
U
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INTRODUCTORY REPORT TO
sufficient counterpoise to the bribes that might be offered by wealthy
delinquents. The punishment assigned to this offence by the code,
bears a proportion to the crime for which the person escaping was
committed, because the injury to the community is greater in propor-
tion to the magnitude of crime, and the temptation offered always in-
creases in the same proportion, and it is incurred whether the party
originally accused be acquitted or be never retaken; neither of which
circumstances can lessen the guilt of the keeper. And allowing either
to operate in his favour, would evidently make it his interest that jus-
tice should be avoided, either by effectual flight, or by the suppression
of testimony necessary for conviction. If the escape be voluntary, the
punishment is one half of that incurred by the crime charged on the
prisoner; if negligent only, it is one quarter.
It is somewhat singular that an offence of this importance, so deeply
affecting the administration of justice, should not be provided against
by our laws, otherwise than under the loose head of misdemeanor in
office, which can only apply to civil officers; but if the crime be com-
mitted by a sentinel set to guard the prisoner, or by a person having
no office at all, it is unprovided against.
To break or attempt to break prison by the prisoner, legally im-
prisoned, when accompanied by violence, incurs the punishment of
from six months in close custody to two years. Breach of prison for
the purpose of rescuing another, is punishable by penitentiary imprison-
ment from two to five years; and this does not depend on the legality
of the imprisonment, as it does in the case of the prisoner himself. A
lesser punishment is denounced against furnishing a prisoner with the
means of making his escape, whether it be effected or not.
The seventh chapter of this title adapts, to the officers of justice, all
offences described in the chapters relating to offences committed by
executive officers.
The important duties attached to the profession of the law, have, in
all nations where the law was a science, given its members the greatest
influence, and sometimes made them obnoxious to the most unworthy
suspicions. Deemed worthy to be trusted with the defence of the pro-
perty, reputation, liberty and life of others; they were yet subjected to
have their own reputation blasted, their only means of subsistence for-
feited, and, if not their lives, all that makes life desirable taken from
them, for offences of all others the worst defined, by a summary pro-
cess, in which the party injured was the prosecutor and the judge, and
his sentence was without appeal. There was, indeed, a corrective in
the publicity of judicial proceedings, and the consequent force of public
opinion, which prevented any great abuse of this dreadful power; but
this was too uncertain a tenure by which to hold reputation or property.
Public opinion, in its sound state, might protect, but when disordered
by the madness of party or prejudice, would but stimulate oppression.
Such a state of things was so little in unison with the spirit of our in-
stitutions, and indeed with the letter of our constitution, that it at length.
attracted legislative attention; and the members of an honourable pro-
fession were, by a law passed in the year 1823, placed on a footing with
other citizens. The benefit of a trial by jury was in all cases, except
that of contempts in open court, extended to them; and some definition
was given to certain offences which they were supposed to be most
THE CODE OF CRIMES AND PUNISHMENTS.
155
liable to commit. This law I have made the basis of the articles of the
ninth chapter of the title we have now under review, but the list of
offences is extended; they are more accurately defined; and while the
object has been to protect the honourable members of the profession, a
proper increase of punishment has been denounced against those who
may disgrace it by their cupidity or chicane.
A short chapter embraces the case of those who may falsely personate
an officer of justice, or a suitor, or bail, or any other person. This was
provided for by our statute, and also the case of a false personification
for putting in bail or confessing a judgment.
Perjury is one of the offences which not only affects the administra-
tion of justice, but all the other operations of government in its various
departments. By the English law this crime could only be committed
by false swearing in some judicial proceeding. Our statute of 1805
wisely extends it to all cases in which depositions or affidavits are
taken pursuant to the laws of the territory. Doubts might arise, under
this statute, whether affidavits or depositions, taken under laws made
subsequent to that statute, were included in it, and also, whether the
affidavits and depositions intended were not exclusively such as were
taken as evidence in a judicial proceeding. The code, by covering a
broader ground, puts an end to those doubts. It defines the crime to
be "a falsehood asserted verbally or in writing, deliberately and wilfully,
relating to something present or past, under the sanction of an oath, or
such other affirmation as is or may be by law made equivalent to an
oath, legally administered under circumstances in which an oath or
affirmation is required by law, or is necessary for the prosecution or
defence of private right, or for the ends of public justice." This defi-
nition includes all testimony and judicial oaths whatsoever, whether
oral or written; and it further extends the provisions of our statute so
as clearly to embrace all other oaths, which are required by law to
attest the truth of any fact, such as declarations under the quarantine
laws and the like. In all of which cases the moral evil and the injury
to the community may be as great as if the perjury were committed in
a court of justice; yet a deliberate falsehood, asserted under oath, ac-
cording to our present laws, would not be punishable at all, except it
were connected with a judicial proceeding; unless special provision to
that effect should be made in the law requiring the oath, which is fre-
quently neglected where it is necessary, and for want of a general pro-
vision, such as the code contains, unnecessarily increases the length of
our laws where it is not neglected. The definition excludes the breach
of promissory oaths, such as oaths of office, from the guilt of perjury;
because, there the offence is not one that exists in taking the oath,
which may be done with the sincerest intentions of keeping it; but in
some act done subsequently, which may be inconsistent with it. If
that act be sufficiently injurious to call for the animadversion of the law,
it will be found to have been provided against, under its proper head;
if it be not, it is contrary to the principle of this code to punish it,
however unconscientious it may be. For we cannot too often repeat,
that the endeavour has been to place no acts in the rank of offences,
but such as were injurious, and were done either with a design to in-
jure, or with an inattention to the rights of others, that is nearly as
reprehensible.
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INTRODUCTORY REPORT TO
This chapter punishes, under the appellation of false swearing, all
deliberate falsehoods, asserted in voluntary affidavits, not taken in the
course of judicial proceeding, nor required by law, but yet made the en-
gines of detraction and other mischiefs; for which it is deplored by
writers on English law, that it affords no remedy. The punishment of
this last offence is, of course, lighter than the former; but the preva-
lence of the evil seemed to require, that it should be repressed by a
penalty, and the nature of the crime suggested the further provision,
that a conviction for this offence might be given in evidence against
the credit of the party in any case in which he might be sworn as a
witness.
On this head of perjury, too close an adherence to the English law
led me to insert an article, which further reflection has induced me to
wish may be erased. It is the second of the chapter, which provides
for a case that will probably never happen, and can cause no injury if
it should, the case of a witness swearing to a fact that is true, although
at the time he believes it to be false.
The suborner to perjury is made liable to the same punishment with
the principal offender. In this the code agrees with the present law;
and it adopts the same measure with respect to false swearing. It
also adds a lighter penalty on him who makes an ineffectual attempt.
to procure the commission of either of these offences.
The provisions of the eleventh chapter have excited much atten-
tion, and given rise to some severe strictures; on the work, as tend-
ing to deprive courts of justice of their only means of self-defence; on
the reporter as being actuated by a spirit of hostility to the judiciary.
The general assembly, I know, will listen without prejudice to my
argument on the first charge, and I hope will excuse me if I add a
word or two on the second.
The power of punishing for contempts, in the extent to which it has
been carried, it is believed has never been justified by the plea of necess-
ity. Its repugnance to all the fundamental principles which secure
private rights in the administration of justice, is so apparent, that no
other argument can possibly be used. The offence is the showing a
contempt for the court. Of all the words in the language, this is, per-
haps, the most indefinite. Every thing that can, by any process of
reasoning, be considered as a disrespect to the court, is a contempt.
Blackstone enumerates seven different species of consequential, as con-
tradistinguished from direct contempts; each of them comprehending
a countless number of different acts as distinct from each other in their
nature, as all of them are from contempt, according to its strict definition.
For instance, the second division of consequential contempts, compre-
hends those committed by sheriffs, bailiffs, and other officers of the
court, by deceiving the parties-by acts of oppression-by culpable.
neglect of duty, &c. In short, there is nothing, from an indecorous.
gesture, or a rude hasty word, up to the most violent opposition to
legal authority, that cannot be brought within the purview of the law
of contempts. Printing a false account of the proceedings of a court,
or a true account while the suit is pending, without permission, as
well as speaking or writing contemptuously of the court; treating a
piece of paper, under its seal, with disrespect; and, to sum up all in
the words of the apologist of the law of England, any thing that shows
a gross want of regard and respect.
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157
Now I put it to those who contend that this power ought to be vest-
ed in courts, I put it to them to say, what is the conduct that will
secure a man against its exercise in the hands of a vain or vindictive
judge? "A want of regard and respect!" Regard and respect can-
not be commanded but by moral conduct, and not always by that.
The most correct conduct will not always secure it; the feeling is in-
voluntary, and cannot be punished. But you must not show that you
want it; it is the demonstration that is culpable. But how shall I
avoid showing it? When in my own defence, or in the prosecution
of my right, I differ from the judge, and show that the opinion he has
given is absurd, certainly I treat him with very little regard or respect.
I can feel none for a man who, by some miserable sophistry, deprives
me of my right; and if I expose it to the world, I show my want of
respect; but a want of respect is a contempt: I am, therefore, liable
to be punished for defending my right in the only way that justice
requires it should be defended. Oh! say the advocates of this tyrannical
power, you must distinguish; attack the argument of the judge as much
as you please, but say nothing disrespectful of the court. But what
jesuit will teach me how I may tell a court, that it has decided
against the plainest principles of law, without showing that I think
they have been ignorant, careless, prejudiced, or worse? When I
know, that by reason of either of these faults they are about to deprive
me of my fortune or my life, can I feel regard or respect? When I
state the reasons by which I demonstrate it, do I not-clothe it in
what language I will-do I not make that want of regard manifest?
And is not this, according to the very terms used by the author I have
quoted, a contempt? It is amusing to observe the expedients which
have been resorted to, to reconcile things that are irreconcilable;
great respect for the judge and contempt for his opinion; professions
of the highest veneration and regard, coupled with allegations that show
the speaker can feel neither; introducing, among other evils, a fawn-
ing, hypocritical cant, equally unworthy of the suitors and the judges.
An offence so ill defined, so liable to be imputed, embracing such
a variety of dissimilar acts, would be dangerous and oppressive in the
extreme, were it to be prosecuted according to the ordinary forms of
law; but all these are disregarded; none of them are preserved, and
the plainest letter of the constitution is violated in its most sacred pro-
visions. It declares, that in all criminal prosecutions the accused
shall have the right of meeting the witnesses face to face, nor shall
he be compelled to give evidence against himself." Yet process of
attachment for contempt issues on an affidavit, and when the defendant
is brought in, it is not to meet his accuser face to face, but in direct de-
fiance of the constitution to give evidence against himself" if he be
guilty, under the penalty of being punished for a "high(a) and repeat-
6
(a) 4 Bl. 287. The mode of proceeding by attachment and interrogatories is adopted in
our courts-1 Martin, Territory v. Thurry-Same v. Nugent. In 10 Mart. 123, De Ar-
mas's case, the court punished for an indecorous expression by suspension for a year; and
this case expressly supports the argument I have used in the first part of this report, that
the Spanish penal laws are unrepealed, unless they are inconsistent with some statute of the
state. In this case several points are decided. First, that the law of Spain giving authority
to the court, when a lawyer is "arrogant....or is of ill fame, or is tedious, contradictory,
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INTRODUCTORY REPORT TO
ed contempt." The punishment by our statutes is limited to fine of
fifty dollars and ten days' imprisonment; but from the case cited in
the note, it appears that the Spanish laws are still in force, unless there
is an express repeal or incongruity between them and our statutes.
With respect to counsellors and attorneys there is such express repeal,
but in no other cases(a). Now in the variety of offences created by
the Spanish statutes, many relate to the courts and judges, and to
their officers and process; all these by the sweeping definition of con-
tempts, may be properly considered as such; and as the Spanish
law has been decided not to be repealed by our law of contempts, the
aggravated punishment may, in those cases, be inflicted as it was in the
one referred to in the note. But without this, if the punishment is
confined to that directed by our statute-is that nothing? Is it nothing
to be deprived of liberty for ten days, without conviction-without
jury? Is it nothing to be forced to give evidence against yourself?
The magnitude of the punishment is comparatively of little moment.
It is the principle that is dangerous. A free citizen ought never to
hold his liberty, even for an hour, or the slightest portion of his pro-
perty, at the will of any magistrate. But those I have noticed are not
the worst features of this species of punishment. Vague and uncer-
tain as is the definition of the offence, yet if impartial persons were
appointed to decide, whether any given word, look, or gesture, was
contemptuous, there would be some security (a slight one I grant)
against oppression; but as if it were to make this example one in which
every principle of correct procedure was to be violated, the person
offended is constituted the only judge-the judge with appeal; and
lest his resentment should have time to cool, he is armed with the
power of summary process-and if we want evidence, he may force
or speaks too much, or any other like crime," is in force, for it is expressly relied* on as
justifying the court for suspending the defendant from practice. Secondly, it is decided
that this law is a penal law. Judge Martin says, "the Spanish law, which thus forbids the
judge to suffer any contempt of his authority, is a penal one, for it cannot be carried into
effect without inflicting some penalty." Thirdly, the full ground I have supposed the doc-
trine of contempt to occupy, is relied upon as law, for the same judge adds, " and a lawyer
guilty towards the court of any contemptuous action, expression, or gesture," may be in-
stantly punished, by suspension at least. Fourthly, the important point I argued for, that
the laws of Spain are not repealed, unless there is a perfect incongruity, or an absolute re-
peal, is declared to be law, supported by at least a dozen authorities. Nay, this case goes
further than I thought it necessary to go, and preserves the Spanish law, even where the
legislature have made a statute on the same subject; for the defendant was punished for
a contempt by suspension, for a year, although the legislature had declared that contempts
should be punished by fine and imprisonment, because, says the same judget," there are
no negative words, and the substance of the new act may well stand with that of the Par-
tidas: the two provisions are not contradictory, and may fairly exist together." And he
strengthens this reasoning by the authority of the superior court, 1 Mart. 129. Judge
Matthew's opinion coincided with that of the other judget; and he states the rules of re-
peal in so clear and methodical a manner, that if the book containing this report had then
been within my reach, I should have adopted his reasoning instead of my own when I treat-
ed of this part of the subject; but although I recollected the case, I did not choose to quote
it from memory.
(a) Act 27th March 1823.
* 10 Martin's Rep. 164.
† Ibid. 169.
+ lb. 172.
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159
the defendant to produce it. Let it not be said, as it sometimes is,
that this is an advantage; that the defendant may, by his answers to
the interrogatories, exonerate himself. Not so. In the case of con-
temptuous words (and I see no reason why it should not extend to
acts also), if he admit the speaking or the writing, the court have the
right to judge of the intent as manifested by the words; and although
the party should deny any disrespectful intent in the most unequivo-
cal terms, the court may declare that the answer is false, and proceed to
impose the punishment(a); and this power is given, too, in the very ca-
ses where it ought to be withheld. If it were confined to cases of ac-
tual injury, not only would the offence be more susceptible of proof-
not only would there be a corrective in public opinion, which could
be fixed upon the question, whether the injurious act had been com-
mitted or not; but the passions even of the party injured, if he were
constituted the judge, would be less liable to be roused. It is a trite,
and therefore, probably, a true observation, that men forgive injuries
much sooner than insults. Judges (although by vesting them with
this power we treat them as angels) are men; their passions will be
more readily roused by real or fancied insults than they would be by
injuries, and nothing can be more at war with justice than passion.
Another evil-there is no end to them—is, that from the nature of the
crime, its existence must depend on the temper of the judge who hap-
pens to preside. Words which a man of a cool and considerate dis-
position would pass over without notice, might trouble the serenity of
another more susceptible in his feeling or irritable by his nature.
There is no measure for the offence, but the ever variable one of the
human mind. The judge carries the standard in his own breast; and
if, by close observation, you have discovered its probable dimensions,
your work is but begun, for every succeeding magistrate has his own
scale for the weight of an offence, his own measure for the extent of
the punishment.
I do but waste the time of the honourable body I address, in show-
ing the dangerous nature of this undefined power; for its apologists
cannot hide its hideous features. Blackstone acknowledges that it is
not agreeable to the genius of the common law in any other instance ;"
but he does not attempt to justify it even from necessity, and contents
himself with showing that it is of "high antiquity, and by immemo-
rial usage has become the law of the land ;" that is to say, that it is
common law, and as that is the perfection of human reason, that it
must be good. But here, where we are not satisfied in general with
this reasoning, as summary as the process it is used to defend—here,
and on this occasion, when we are inquiring, not what is, but what
ought to be law-here some other argument must be used to show that
we ought to adopt or continue this oppressive absurdity: and that ar-
gument is found in a single word-necessity. In the present improv-
ed state of human intellect, people do not so readily submit to the
force of this word as they formerly did. They inquire-they investi-
gate, and in more instances than one, the result has been, that attributes
(a) 1 Mart., Nugent's case. It is true, the words used there, could not be reconciled to
the declaration that no disrespect was intended; but if this case was correctly decided (and
there is no reason to doubt it), the court have the right, in all cases, to judge between the
answer to the interrogatories and the words used.
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before deemed necessary for the exercise of legal power, were found
to be only engines for its abuse. Not one of the oppressive preroga-
tives of which the crown has been successively stripped, in England,
but was, in its day, defended on the plea of necessity. Not one of
the attempts to destroy them, but was deemed a hazardous innovation.
Let us examine whether this power does not partake of the same nature.
A recurrence to the great principle of self-defence, which we have
in a former part of this report developed, will serve to show with
some certainty, as it is thought, to what extent this power is necessary
or proper. _Society has, if our reasoning be correct, the right of self-
defence. Every department created by that society for its government
-every individual composing that society, has the same right, defin-
ed to mean the right of defending existence, and the operations necess-
ary to existence. But society, as the superintending power, must
have for the purpose of securing these and all other rights belonging to
departments and to individuals, the further power to punish. Society
alone has this right. Try the law of contempts by this simple rule.
Courts of law are the organs of one of the departments of society,
and, to avoid confusion, we will select for our example courts of ex-
clusively civil jurisdiction; such courts have the right to defend their
own existence, and to repress every thing that interferes immediately
with the exercise of their legal powers. They have this right, as a
legitimate part of society, by the principles of natural law; and if it
be curtailed by any constitutional provision, it is a great defect, be-
cause self-preservation very frequently requires immediate efforts that
would make an application to any other power ineffectual. Every
thing, then, that is necessary and proper to defend its existence, and
secure the free performance of its functions, can with no greater pro-
priety be denied to a court than there would be in forbidding an indi-
vidual to defend his life against the attack of an assassin. But neither
the court nor the individual have necessarily the right to punish, either
after the attempt has been repelled or after it has been carried into exe-
cution. That is the duty and the right exclusively vested in the whole
society. An individual has the right to defend himself against an
attack upon his liberty or life; but after he has successfully resisted it,
he has no right to punish; yet liberty and life are considered as suffi-
ciently protected by this limited power. Courts of justice have the
same right to repel all attempts to interrupt the performance of their
functions. They are incorporeal beings, whose existence is only in
the performance of their functions-that is their life-that is their
liberty. They are, or ought to be, armed with every power necessary
to defend them. Noise, interruptions, violence of every kind, must
be repressed; obedience to all lawful orders which are necessary for
the performance of their functions, must be enforced. Thus far the law
of self-defence goes, but no further. Is the violence over-has the in-
terruption ceased-is the intruder removed—has the order, which was
disobeyed, been complied with ?-here the power of the incorporeal
being, as well as that of the individual in the analogous case, ceases,
and the duty of the sovereign power begins. That alone must punish-
that alone can define offences and fix the penalty for committing them.
An infringement of the legal rights of a court of justice is an offence, and
that government is radically defective which places the power to punish
it in the hands of the offended party. Here, then, we find the limit of that
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161
necessity, which is so much insisted on, and so little understood. There
is a necessity that courts should have the power of removing interrup-
tions to their proceedings, because, unless they can perform their func-
tions, they cannot exist, but there is none that they should have the
power to punish those interruptions; the laws must do that, by the
instrumentality of the courts, but in the form prescribed by law.
If the argument has been as clearly expressed as its force is felt, it
must be convincing to show-that all those offences, distinguished by
the name of contempts, ought to be banished from our penal law, which
they disfigure by the grossest departure from principle; that courts
ought to be empowered to remove all obstructions to their proceedings;
that all such acts, as well as those tending to interrupt the course of
judicial proceeding, to taint its purity, or even to bring it into disre-
pute, should be punished only by the due course of law; and that
proper punishments, inflicted by the regular operation of law, will de-
ter from these acts much more effectually than the irregular agency of
the offended party, who sometimes, from delicacy, will abstain from
enforcing the penalty of the law-sometimes, from the indulgence of
passion, will exceed it.
It is on these principles that this part of the code has been framed.
It vests ample powers of repression in the court. They may remove
every interruption to their proceedings; they may enforce prompt
obedience to their orders; they may, if simple removal is not found
sufficient, restrain by imprisonment; and, after this, a regular trial and
punishment follows for the offence. Here is no angry altercation.
All is done with the composure necessary to the dignity of justice. The
judge is not the accuser; the accuser is not the judge. All that class
of offences, too, which consist in insulting expressions, are provided
for. But here again an impartial jury decide, as well on the nature of
the words, as on the intent with which they were used.
The judge
cannot improperly indulge his feelings, or restrain them, to the injury
of public justice; and the offender against laws for preserving the
order and dignity of the judiciary, is liable to the same penalties, en-
titled to the same rights, and judged by the same laws, that apply to
other offenders.
This chapter, then, far from derogating from the respect due to the
judiciary, is calculated, in all its provisions, to enforce it; and the in-
sinuation, that its author could be actuated by any hostility to that de-
partment, is not only groundless, but absurd. If, indeed, it is hostility
to a department of government, to desire that none but its proper pow-
ers should be vested in it by law, or still less, should be exercised
without law; if it be hostility to the judiciary to divest them of the
odious accumulation of the offices of judge, party, legislator, and
accuser, in the same person; to protect their functions in their exer-
cise, and punish all attempts to interrupt them; then is this chapter
dictated by a spirit of the most determined hostility.
The next class of offences are those which affect the public tranquil-
lity; and they form the subject of the sixth title.
The first chapter
comprises two offences of this nature-unlawful assemblies and riots.
The first being a preparatory step to the second offence. They are
both so clearly defined as not to be easily confounded; and although
both are taken, in their general features, from the English law, there
are several modifications introduced, which, it is hoped, will be con-
V
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sidered as improvements. If the object of the one or the other offence be
in opposition to the collection of taxes, or to a sentence of a court, or for
the purpose of effecting a rescue, a definite increase of punishment is or-
dained, instead of leaving this entirely to the discretion of the court,
which would have induced the necessity of an enlargement of that
discretion in fixing the original punishment, so as to embrace the two
cases. To encourage obedience to the law, it is provided, that if any
one, either voluntary or in obedience to the admonition of a magis-
trate, shall leave an unlawful assembly, without any intent to return,
before a riot has been committed, that he shall avoid the punishment
due to his assisting in the first offence. An increase of punishment.
is also directed against those who shall appear armed at such unlawful
assembly or riot; and to avoid all equivocation, the term is one of
those that are designated as being used in the sense described in the
Book of Definitions.
A proceeding, analogous to that of reading the riot act in England,
is directed to be had by the magistrate, to disperse an unlawful assem-
bly, or put an end to a riot; but it is one that, it is thought, is better
calculated to strike the attention, while its purport is equally or more
intelligible to such an assemblage; and it consists in the display of a
flag, accompanied by a short proclamation; the effect of disobedience.
to which is pointed out; and in the correspondent chapter of the
Code of Procedure all the forms are given, as well as the mode point-
ed out for calling out and employing the military, in aid of the civil
power, when the first is insufficient to restore order.
An article in this chapter imposes a penalty on those exhibitions of
pugilism which disgrace any society in which they are suffered.
Public disturbance is a minor species of this general offence, and it
is made punishable by a slighter penalty, and may be repressed by the
summary interference of the magistrate.
Articles containing negative provisions prevent any interference with
legal meetings.
Offences against the right of suffrage form the important subject of
the seventh title. Bribery, violence, undue influence, are endeavour-
ed to be guarded against by enactments, sufficiently explicit to be un-
derstood without commentary, and by penalties proportioned and ana-
logous to the several offences.
The eighth title would require much elucidation, if the subject of it
had not already been submitted to the legislature, and if its provisions
had not received their sanction and produced some strictures; but be-
ing founded in true principles, the more closely it has been examined
the more clearly has its utility appeared; and if a novelty, it is not
one of those that can be characterised as dangerous or useless. While
we all profess a respect almost amounting to adoration for the liberty
of the press, we may be permitted to wonder that it has, as yet, been
protected by no penal enactments, while every code abounds with laws
to guard against its abuse, and frequently, too, under that pretext, to
destroy it.
Our state has been more particular than most of the
others, in guarding this precious privilege, by its constitution; but the
constitution could, of course, contain no penalty for a breach; that care
was left to the legislature. We cannot too often recur to the very
words of our fundamental law on that subject; full of foresight and
wisdom, they are calculated to defeat every attack that might be made
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163
by open violence or insidious attempts upon this safeguard of our
liberties: "Printing presses shall be free to every person who under-
takes to examine the proceedings of the legislature, or any branch of
the government, and no law shall ever be made to restrain the right
thereof "(a). But if such a law should be made; if a wicked and cor-
rupt legislature should try to repress any discussion of their proceed-
ings by heavy penalties; and if a subserving judiciary should be found
to execute their unconstitutional statutes-where is the remedy?
Should there be none? Why should disobedience to this constitutional
law go unpunished? Surely the immorality of the act, and most sure-
ly its injurious tendency, are sufficiently apparent to call for and to
justify repression and punishment. Surely the legislature, which
provides a sanction for this wise and highly important law, are per-
forming a sacred duty.
ty.”
Again this was a favourite theme with the framers of our consti-
tution. They seem loth to quit it while any thing remains to be said,
that could show the high regard they had for this privilege. They
add: "The free communication of thoughts and opinions is one of
the invaluable rights of man, and every citizen may freely speak, write,
and print, on any subject, being responsible for the abuse of that liber-
But if that freedom, thus intended to be secured, is endeavour-
ed to be shackled by threats, by actual violence, by the illegal exercise
of judicial power, under pretence of an alleged abuse? Are not laws,
tending to restrain these abuses, worthy of the attention of the legis
lature when it is forming a system of penal law? Either the privi-
lege was not worth all the care and attention which has been given to
it in the constitution, or it is worth that of the legislature to protect
it. Without some law of this kind, the constitutional provision can
have no efficient operation. But with the aid of the penal law, it re-
ceives the force and effect which its importance merits.
A very superficial attention to one of the articles, has produced an
objection that seems to have had some weight, but which is entitled to
very little. The article imposes a penalty on any judicial or other
officer who, under pretence of any law which contravenes the
constitution, in this respect, shall restrain or prevent the exercise
of the liberty of discussion secured by the constitution. Now, it is
said, if a legislature be found wicked enough to pass such an uncon-
stitutional law, they will also, to secure its execution, repeal that part
of your code, and your penalty then goes with it. This objection was
anticipated in the first report, and it was answered, that attacks upon
the privileges of the people are, for the most part, insidiously made
under pretence of public good, and clothed, at least, with a specious
regard for constitutional forms; and that a repeal of this part of the
code would take off the mask and put the friends of the people on their
guard, and therefore it would not be attempted; or, if it were, that
the repeal of this part of the code, like the attack of an outpost, would
put the main body on their guard. Another reason may now be add-
ed, that a law infringing that important part of the constitution might
be passed, not from any direct hostility to the liberty of the press in
general, but for the purpose of some party advantage or other tempo-
rary motive, in troublesome times; and in such case, it would not be
(a) Constitution of Louisiana, art. vi. sect. 21.
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accompanied by the repeal of the code. Again-the existence of this
article in the code, at least, forms an additional security, for members
might be found to concur, from interest or passion, in abridging the
liberty of the press, who might not go the length of repealing the
article; and every additional security, which is attended with no in-
convenience, and none can be even supposed here, is of the highest
importance. And finally, admit that it may be rendered nugatory by
a repeal; yet if it should be of use until that repeal takes place; if it
should defeat one unprincipled attempt to destroy this sacred privilege;
if it should only give time for its friends to rally in its defence-it
would be of inestimable value.
As expression, also, of legislative opinion, its importance is not
small; and the vigilance which it testifies in the guarding of consti-
tutional rights, will not only reflect honour on those who pass it, but
teach the people how to appreciate those rights which they see thus
carefully enclosed with penalties.
One more reflection and I dismiss the subject, with a simple reference
to the chapter, which contains nothing that needs an explanation to
elucidate any further the several offences and their punishment. That
reflection is this, that there is no one possible inconvenience attending
the execution of any of the enactments of this chapter. No penalty
can fall on any person who does not openly and wilfully violate one of
the most important parts of his country's constitution; no ambiguity in
the definition of the offences; no undue severity in the punishment. It
is new! This is the "very head and front of its offending;" but it is
not dangerous. It is believed to be necessary and highly useful.
•
The ninth title relates to offences affecting public records; on which
subject we have now three provisions in the 19th and 20th sections of
the act of May 1805, and the Sth section of the act of 19th March 1818.
By the first it is forbidden feloniously to steal, take away, alter, falsify,
or otherwise avoid any record, writ, process, or any proceeding in any
of the courts, under the penalty of fine to three thousand dollars, and
imprisonment at hard labour not exceeding two years.
The second provides, that those who shall deface, alter, or embezzle
any record, or enrolment, or matter, or instrument recorded, or registry
thereof, with intent to defraud, shall pay a fine to one thousand dollars,
be imprisoned at hard labour to two years, and be rendered incapable
of holding any office.
By the third, if any person shall forge, or counterfeit, any public
record or attestation of a public officer, where such attestation is legal.
proof, he shall be punished by solitary imprisonment to one, and at
hard labour not less than two nor more than fourteen years.
Thus, taking these sections together, we find, first, that to steal or
alter the record of a court may be punished by a fine of one cent, and
imprisonment for one hour, but that the fine cannot exceed three thou-
sand dollars, nor the imprisonment two years; whereas the minimum
punishment, for forging a record of enrolment, is exactly the maximum
that is inflicted for stealing or forging the record of a court; unless the
general expression, record, in the third act, should be construed also
to include court records; in which case there would be the difference I
have stated, between the punishments for stealing and for forging the
same record.
Secondly, that there is a difference in the punishments of the two
THE CODE OF CRIMES AND PUNISHMENTS.
165
offences, designated in the first two sections respectively, that does not
seem to be warranted by any distinction between them, in moral guilt,
or public or private injury.
court.
Thirdly, that in a fair construction of the words employed, all three
of the sections include the same offence, to wit, forging the record of a
The first designates, as one of the acts it forbids, to alter,
falsify, or otherwise avoid any record, or other proceeding in any
court. The second, to deface, or alter, or embezzle any record, en-
rolment, or matter of record, &c. The third, to forge, or counterfeit
any public record. All of these have different penalties. Are they
all to be inflicted? The reasoning of the court(a), above quoted,
would seem to decide the affirmative of this question, for none of
them contain a repealing clause, and two of them are in the same
act. Yet, if they are, what confusion must ensue. This evil is reme-
died by the code; these, and all other offences of the same nature, are
clearly described; all the words used in the description are defined; and
the distinction, between the guilt and mischief, where an officer, who
has the custody of the records, betrays his trust, by falsifying or de-
stroying them; and the same crime committed by any other individual,
is marked by an increase of punishment. In this, as well as in a sub-
sequent title, the law is simplified by using a general description of the
records intended to be protected against falsification and other injury,
rather than by an enumeration, which is generally made imperfect in a
few years by other instruments coming in use, which it is also necess-
ary to protect. False certificates of recording officers, personifications
to execute, or acknowledge, or prove authentic instruments, are pro-
vided against; and a section, describing what shall be deemed a fraudu-
lent use of a forged record, will, it is believed, clear up doubts that
have heretofore existed on that subject.
The title of offences against the current coin of the state, is so drawn
as to embrace every offence of this nature. There is, among others, a
section making it penal to possess counterfeited coin with the intent to
pass it as true, either in the state, which is the provision of the
present law, or to send it, for that purpose, into any other of the
states, or into a foreign country. This is new in penal legislation, but
it was thought honourable to the state to prevent its being made a den,
in which coiners might carry on their fraudulent manufactory to the
injury of other countries, whether enemies or friends; and as one step
towards the application of that golden rule, " to do as we would be done
by," to nations as well as to individuals. These advances need only
be begun; they will be reciprocated; each will promote its interest as
well as its honour, by making or meeting these advances, and from the
most trifling beginnings, consequences most important to human happi-
ness may result.
The great evil to the revenues of the state, arising from a misappli-
cation of public moneys by those entrusted to receive them, was seri-
ously considered, and a preventive remedy is proposed, which, it is
thought, will in a great measure take away the temptation to the offence.
A forced deposite of all moneys, by leaving no large sums in the pos-
session of the party, will leave him little inducement to incur the
penalty; and the measures described in the code, are such as cannot fail
(a) 10 Martin.
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to bring on detection in case of disobedience. After the deposite is
made, it cannot be withdrawn without a deliberate crime, the com-
mission of which, in the nature of things, cannot remain concealed. In
ordinary cases, this breach of trust is made with the design of replacing
the money before it can be called for; and this honest intention palliates
to the party the irregularity of the conduct. But if this was to be pre-
ceded, before any advantage could be made of the money by a false
check that must remain on file and insure the conviction of the party,
he will, nine times in ten, refrain from the offence, and the revenue
will be free from this risk.
Extortion by collectors, or violence against them, are equally pro-
vided against.
Under the head of offences which affect commerce and manufactures,
we have, first, those which affect foreign commerce.
These are offences against the inspection laws; shipping articles with-
out inspection, when it is required by law; and counterfeiting marks or
brands of the proper officers. The frauds which have been but too
common in packing articles of little value in boxes or bales, intended
for exportation, are punished by an adequate penalty. Destroying a
vessel on the high seas, by the master or mariners; frauds against in-
surers, either in or out of the state, by shipping articles of inferior
value; and any act done in the state, preparatory to a fraud to be com-
pleted abroad; or any such act done out of the state, if the fraud is to
be completed within its limits, make the party liable, and this in virtue
of a principle that has been before discussed.
A chapter regulates the conduct of tavern-keepers in regard to sea-
men; and refers to the existing laws on that subject, it being rather a
matter of police than of penal law.
A short chapter contains the usual and simple penalties against using
false weights and measures; and another has some new enactments to
punish the fraudulent use of false marks on merchandize, which usually
denote the quantity or quality of the article contained in the package.
The next class of offences, which may be distributed under the head
of those which injure the commerce, manufactures, or trade of the
country, are those affecting the validity of written contracts-a most
important title in the criminal law of modern times, although scarcely
known in the simple code of our ancestors, in the middle ages. Among
the offences of this class, forgery is the most prominent. As was natu-
ral, it has closely followed the footsteps of paper credit. It has increased
with increasing commerce, and thrives most where the circulation of
bank-paper is most widely spread. In England it was an offence at com-
mon law; but it could not be very prevalent at a time when commerce
was barter, and when the evidences of public and private credit, being
alike unknown, little inducement was offered for the exercise of the
ingenuity of the very few who had learning enough to commit the of
fence; being then neither felt nor apprehended as a serious evil, it was
punished only as a misdemeanor.
By the first statute, (8 Richard II. c. 4.) it would appear, that this
crime was only apprehended from judges and clerks, and in the falsifi-
cation of court records alone. From the provisions of the statute of
Henry VI. we may judge that it began to make some progress; that
others, besides judges and clerks, tampered with the records, and that
the evil was sufficiently prevalent to require a severe penalty; for by
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167
that statute the offence, by whomsoever committed, is raised in the
calendar of crimes to the rank of felony. But by the operation of a
clerical privilege, this law had the effect of exempting from punishment
the only persons who were enabled to commit the offence; while its
penalties could be enforced against those only who were under a physical
incapacity of incurring them: although the crime could be committed
by none who could not read, the knowing how to read was the certain
means of escaping punishment; which was only inflicted on those who
demonstrated, by their ignorance of that art, that they were not guilty.
This absurdity continued until late in the reign of Elizabeth. We then
find the government first beginning to pay some attention to the subject.
Their statutes, however, protected no species of written contracts, until
experience had shown that it became the object of the offence, and its
prevalence forced them to legislate; but even then, they carefully re-
stricted their protection to that species of writing which called for their
immediate attention, leaving all others to form the subject of another
law, when their introduction into commerce should tempt the hand of
the forger to counterfeit them; so that the English statutes might serve
as a chronological catalogue of the securities successively in use, from
the time of the first statute to the present day.
The first enactments on this subject are, I believe, the statutes of
Richard II. and Henry VI., before referred to. Neither of these relates
to any other forgery than that of records. From that time no other
writing seems to have claimed the attention of the law, until the fifth
year of the reign of Elizabeth, when the forgery of deeds, charters,
sealed writings, court rolls and wills, by one section; and by another,
that of obligations, acquittances and releases, was punishable by muti-
lation, imprisonment and forfeiture. During this reign there is but
one other law on the subject(a), which relates to soldiers' and mariners'
passes, and makes the forgery of them felony, without benefit of clergy.
From this time, for more than a century, I find no statute referred to
in the treatises on this subject; but they multiply afterwards in an extra-
ordinary ratio. There are two in the reign of William III.—five in
that of Anne-eight under the first George-ten in the reign of his im-
mediate successor and thirty-seven from the 1st to the 45th of George
III., since which I have no account, making, in all, more than sixty
statutes, bearing on different modifications of the same offence.
This legislation was inevitably confused from its prolixity. It was
also, from its nature, in some degree inefficient. By attempting the
difficult, perhaps the unattainable, object of protecting every species
of writing by name, it constantly left some unprovided for, and, of
course, open to the enterprise of offenders; until the statute, like the
Pœna pede Claudɔ' of the poet, came limping behind it with a new
penalty. But the application of this penalty was attended with new
difficulties from the defects of the system. As each penalty was de-
nounced against those who falsified a particular instrument, it was
necessary, in the act of accusation, to charge that the writing in ques-
tion was one of that particular class. A mistake in this nomenclature
has proved fatal to more than one prosecution.
Another source of uncertainty in this system is, that a change of
circumstances and habits in the country, may render the law obscure
and sometimes unintelligible. The name by which certain writings are
(a) Stat. 39 Eliz.
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designated in the act, may be well understood at the time of its pass-
age, and afterwards, by disuse, become wholly unknown, at least to
the people; for instance, in the territorial law of 1805 it is made
forgery to counterfeit a cotton receipt. This instrument is understood.
in those parts of the state where cotton is the staple commodity, to
mean a kind of negotiable receipt, given by the owners of cotton gins,
to their customers, for cotton brought to be cleaned; but in the lower
part of the country, I doubt whether it is, even now, generally under-
stood, and certainly it would not be, if either that species of culture
were abandoned, or if, by the invention of some cheap machinery,
every planter should clean his own cotton. In either of these cases,
the term might be applied to some instrument for which it was never
intended.
Our legislature might have avoided these inconveniences, but un-
fortunately they proceeded on the same vicious plan, of enumeration,
which had been adopted in the statute law of England; and as might.
have been expected, with the same effect; although in framing our law
of 1805 we had the English catalogue before us, and might cull from
her statutes all the writings which we wish to add to those in use
among ourselves, for the purpose of protecting them against forgery;
yet since that period, two other statutes(a) have been found necesssary
to increase the list; and in progress of time, our statute book, unless
some other system be resorted to, may on this head, vie in prolixity
with the statutes at large.'
""
The means of avoiding these inconveniences are so obvious, that I
was, at first, inclined to think that some insurmountable objection,
which I could not discover, must have prevented their adoption. But
when the most deliberate exercise of my judgment could suggest no
such objection, I ventured upon the description of the offence, not by
enumerating the different writings which should be its object, but by
a definition, intended to embrace all those which it is the policy of the
law to protect by the high penalties attached to the crime of forgery,
and to exclude all those which, from their nature, ought not to be
the subject of that sanction. This change is offered with some con-
fidence, because the foundation of it is laid in the definition of this
crime by the common law, which, as far as my reading and observation
have gone, has given rise to much less uncertainty of decision, than has
taken place in the practice under the statutes. By these means all the
uncertainty, arising from an erroneous charge in the indictment, as to
the species of contract, and it is no small item, will be avoided.
will be, hereafter, only necessary to describe the effect of the instru-
ment, not to declare to what class of contracts it belongs; and every
instrument, which the convenience of commerce or the extension of
obligations may introduce, will, at once, be protected by the law,
without a new statute to add its name to the list. The next change
from the present system, which is proposed, grew naturally out of the
first. By the thirty-third section of the law of 1805 it is enacted, that
"all the crimes, misdemeanors, and offences, therein enumerated, shall
be taken, intended, and construed according to, and in conformity with,
the common law of England." This has always been construed into
an adoption of the common law definition, of the several offences which
are made punishable by our statute law, where the statute itself gave
(a) Acts of 22d Feb. 1817, and 20th March 1818.
It
THE CODE OF CRIMES AND PUNISHMENTS.
169
no other definition. But by the common law some acts were consider-
ed as forgery, which could not be brought within any reasonable defini-
tion of the offence: if a man, who had made a conveyance, should
afterwards execute another of a prior date, for the same property, with
intent to defraud; or if he passed a note, signed by himself, pretend-
ing that he was another person who bore the same name, but had better
credit; or if he procured the execution of an instrument which had
been secretly altered, or substituted one for another before agreed
upon; all of these acts were classed under the head of forgery. They
can be placed there, however, only by an arbitrary arrangement, which
destroy's all systems, and sets definition at defiance. They have this,
in common with forgery, that they are all fraudulent acts, and are all
committed by means of written instruments; but forging implies falsi-
fication of an instrument, and cannot be committed by the fraudulent
use of a true one, or by the alteration of a writing before it becomes
the act of any one.
I have, therefore, characterized them as offences affecting written
contracts, and annexed to them different measures of punishment, pro-
portioned to the offence, but have not considered them as forgeries.
In the definition I have offered of forgery, the intent to defraud is
equivalent to the actual completion of that part of the offence. In that
the new plan coincides with the present system; but it differs from it
in this, that no particular person need to be assigned, as the one on
whom the fraud was intended to be practised. The necessity for this
designation, and the uncertainty of the proof, leads now to the escape.
of the guilty. But although the allegations of fraud be general, it can
never injure the innocent; for if it does appear from the instrument, it
must always be strictly proved. An inspection of the different articles
of this chapter will render any further exposition of them here unne-
cessary. If its provisions are well drawn, it provides for all those
offences affecting the validity of written contracts, which have been
deemed worthy of punishment by the English law, or which require
it under our state of society. The falsification of other writings not
affecting property, such as public records and other official acts, is
provided for in other parts of the code.
Although, by the general plan, all the definitions of technical words
used in the code are collected in the book designated for that purpose,
this order is deviated from, in cases where words or phrases are used
exclusively in relation to any particular offence, in which case they are
sometimes placed as articles in the section which treats of the offence.
This deviation is more perceptible in this chapter than perhaps any
other in the code, and it extends in this instance so as to embrace de-
finitions of some words that are not used exclusively in regard to the
offences contained in that chapter. It was resorted to in order to bring
into one view every thing necessary for the full understanding of an
important class of crimes; but, in all such cases, the same definitions
will be found repeated in the Book of Definitions.
In order to give a connected view of all the changes that are pro-
posed, as well in the prosecution as of the definition of this class of
offences, I must anticipate here some observations which regularly
would find their place in the introductory discourses to the Code of
Procedure and the Code of Evidence. As to the first; that part of
the Code of Procedure which relates particularly to prosecutions for
W
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offences under this chapter, contains some provisions which require
particular notice. One great inconvenience in the present system,
has already been hinted at; the necessity of giving the false instru-
ment a name in the indictment, in other words, of charging that it
purports to be a receipt, a note, or some other of the writings which
are specifically enumerated in the various acts. By substituting a defi-
nition instead of such a catalogue, this difficulty in the practice is
avoided. Another very fruitful source of captious exceptions arose
from the necessity of setting forth exact copies of the instrument in
the indictment, a mistake in which led always to delay, and some-
times defeated the ends of justice. It is thought that the provisions
on this subject will effectually prevent this evil; while, at the same
time, they assure to the accused every degree of certainty in the accu-
sation, necessary to a full understanding of the charge, and every
fa-
cility which justice and humanity require for making his defence.
The hope of escape, by some technical exception, animates every
culprit; he generally overrates his chances of acquittal from this
source; and it is, therefore, a point of the greatest importance to cut
off this hope of impunity, to convince the accused that no defect of
form can, under any circumstances, procure his escape; and that the
only chance of safety lies in an acquittal on the merits. This convic-
tion, once deeply impressed on the minds of offenders, and counter-
acted by no examples of impunity from defects of form, will have the
happiest consequences, particularly in this description of crime, in
which these objects are at present most common, and on which, well
or ill-founded, the guilty place the greatest reliance for escape. To
effect these important ends, provision is made in the Code of Procedure,
that before the defendant can be called to plead, he shall be furnished
with a copy of the instrument said to be forged, have an opportunity
of comparing it with the original, and at a time assigned be called on
to produce his objections, either for any variance, for misnomer, or
any other defect of form; these are to be disposed of in a manner
directed by the code, before the plea; and then the trial takes place,
divested of any other inquiry but that on the merits.
This part of the Code of Procedure provides also simple forms of
indictment for every offence contained in the corresponding division.
of the work, and for every modification of these offences; from which
it has been endeavoured to discard all superfluous allegations, but to
give to the accused all necessary information of the nature of the charge
against him; but a close adherence, even to these forms, is not ren-
dered essential, and means are taken, and it is hoped effectual means, to
remedy every evil arising from exceptions to defects of form. I now
pass to the consideration of a few rules of evidence, contained in the
Code of Evidence, applicable particularly to trial for offences of this
class.
This ex-
By the English law, the person whose name is forged, was not ad-
mitted as a witness to prove the forgery, if any suit could have been
supported against him on the instrument, if it were true.
clusion is, by the English jurists, endeavoured to be reconciled to the
general rule, that direct interest alone shall be deemed an objection to
the competency.
1st. From the consideration that the forfeiture consequent on con-
viction, vested all the property of the offender, and, of course, the
THE CODE OF CRIMES AND PUNISHMENTS.
171
instrument on which he was convicted, in the crown, who neither
could, nor would, enforce the payment of it after conviction; and that,
therefore, there is an evident interest in the witness to procure such
conviction.
2d. That it is the practice of the courts to impound the instrument
on which a conviction for forgery took place; that is, to keep it in the
hands of their officer to prevent a fraudulent circulation, and therefore
it would be the interest of the witness to procure a conviction, because,
in that case, the difficulty of succeeding in a private suit would be in-
surmountable.
The first of these reasons cannot apply here, where forfeiture is un-
known; and the practice on which the second is founded, is so modified
in the new code, as to give facility to the bringing a civil suit, even on
an instrument which, in the criminal court, has been declared a forgery.
There can, therefore, be no foundation for alleging an interest, that
would render the witness incompetent under our law; and to exclude
him for any other of the reasons usually alleged, would be a departure
from principle, and destroy the harmony which ought to prevail be-
tween the rules of evidence in criminal and civil cases. It is true, that
a bias may not unreasonably be suspected in such a case against the
prisoner. But it is one that can be appreciated by the jury, and there-
fore ought to go to credit, rather than competency.
"In adopting this rule you will only sanction what has heretofore
been practised in this state, and in several others governed by the prin-
ciples of common law; but as there has been a diversity of decision on
this point, and as the English rule is at present observed by our courts,
it was thought proper, for the reasons alleged, to abrogate it by a legis-
lative provision."
The chapter on fraudulent insolvencies has been framed with a view
of making it applicable to the present system of insolvent laws, or to
any other that may be substituted for them. The great evils to be ap-
prehended in those cases being, the concealment of property, the fraudu-
lent conveyance of it, and the creation of fictitious debts. All these
have been provided against, by penalties applicable as well to the dis-
honest debtor as to the persons who may colleague with him, to the
injury of the creditors. These penalties extend to penitentiary im-
prisonment for making a false and fraudulent schedule of property or
debts, or for wilfully destroying books or papers, with a design to de-
fraud. The other offences being such measures as are, for the most
part, resorted to in moments of embarrassment and trouble, not show-
ing such depravity as calls for the discipline of the penitentiary, it was
thought would be sufficiently corrected by suspension of certain political
and civil rights, and by imprisonment. The circumstances of the in-
solvent forbade the addition of any fine to his offence; but it forms part
of the punishment of those who collude with him, and who may be
supposed to have the means of paying one.
By the single article of the thirteenth title, respecting offences af-
fecting public property, it is declared, that all the provisions for the
protection of private property, apply also to that of the public. And
in the fourteenth title is also comprised one general provision referring
to the ordinances of the juries of police, and the public corporations of
cities and towns, for the laws respecting the making and enlarging the
levees, roads, bridges, streets and public squares, and for the penalties
•
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they impose for a disregard of them; it having been found impossible,
in a permanent system, to provide for the varying legislation that the
changing nature of the subject would require; or, in a general system, to
embrace all the circumstances which the local police might require.
But two chapters, under this title, contain the only enactments on this
subject, which, from their nature, could be justly made permanent and
co-extensive with the state in their local operation. These two chap-
ters are based upon the present law, and, therefore, need no further
elucidation.
The fifteenth title relates to offences injurious to public health or
safety. At the time it was written the Code of Public Health was in
force. As it has since been repealed, it is presumed that the legislature
do not consider any provision, against the introduction of infectious and
contagious disorders, to be necessary, and the chapter on that subject is
suppressed. The first chapter of this title, as it now stands, imposes a
penalty on all those who store gunpowder in greater quantity than ten
pounds, within one hundred yards of a dwelling-house, or public road,
or the land of any person who does not give his consent; who carry on
trades injurious to the health of those who live in the vicinity; and
against those who adulterate provisions, liquor, or drugs, so as to make
them injurious to health.
Offences against morals are the subject of a title containing four
chapters.
The first relates to disorderly houses, and its provisions coincide
substantially with those of our statute, but the offences are more pre-
cisely defined.
The second chapter contains prohibitions entirely new in our law,
although they form a very comprehensive part of the English common
law, under the title of Offences against Decency. This is quite un-
defined in that law. In the chapter which I present, it is restricted to
four cases indecent exposure of person; insulting and indecent lan-
guage to a woman; deliberate seduction, under promise of marriage ;
and the infamous agency of ministering to the vices of others. Seduc-
tion is not, I believe, punishable in England, unless preceded by a
conspiracy; nor in any manner whatever by our statutes. Yet, if we
consider the base profligacy of the act, by which the most implicit
confidence is betrayed, and the most solemn promises are deliberately
broken, not only to the utter ruin of the unsuspecting victim, but to
the disgrace and misery of her connexions, it is one in which the im-
morality of the act, and the misery it inflicts, both require exemplary
punishment.
Although the private excesses of the passion between the sexes can-
not, with propriety, be made the subject of penal law, yet public opinion,
in all nations, has marked, by its decided reprobation, him who, without
being excited by his own passions, ministers to those of others for gain,
and in that vile office frequently seduces innocence, or purchases the
influence of infamous or necessitous parents to the dishonour of their
child. The indication of public sentiment has, on this occasion, been
pursued, and the act has been made penal by the code.
It seems right and proper that the law should lend its aid to punish
all acts against individuals that provoke a just resentment, which will
naturally vindicate itself, if the law refuses its aid. It is for this reason
that the article, imposing a penalty on indecent and insulting expressions
THE CODE OF CRIMES AND PUNISHMENTS.
173
to a woman, has been added. It has been considered, by one whose
authority and opinions I highly respect, as descending into minutiæ
unbefitting a penal code, and as one of those offences to be repressed
by public opinion or the fear of private chastisement, rather than by
law. If the force of public opinion were a sufficient sanction, I should
have proposed no other; but it is because its insufficiency is acknow-
ledged, and private resentment is proposed to aid its operation, that I
propose to substitute the regular action of the law to the uncertain
penalty of individual passion.
Whether adultery should be considered as an offence against public
morality, or left to the operation of the civil laws, has been the subject
of much discussion. As far as I am informed, it figures in the penal
law of all nations, except the English; and some of their most celebrated
lawyers have considered the omission as a defect.
Neither the immorality of the act, nor its injurious consequences on
the happiness of females, and very frequently on the peace of society
and the lives of its members, can be denied. The reason, then, why it
should go unpunished, does not seem very clear. It is emphatically
one of that nature to which I have just referred, in which the resent-
ment of the injured party will prompt him to take vengeance into his
own hands, and commit a greater offence, if the laws of his country
refuse to punish the lesser. It is the nature of man, and no legislation
can alter it, to protect himself where the laws refuse their aid; very
frequently where they do not, but where they will not give protection
against injury, it is in vain that they attempt to punish him who sup-
plies, by his own energy, their remissness. Where the law refuses to
punish this offence, the injured party will do it for himself; he will
break the public peace, and commit the greatest of all crimes, and he
is rarely or never punished. Assaults, duels, assassinations, poison-
ings, will be the consequence. They cannot be prevented; but, per-
haps, by giving the aid of the law to punish the offence, which they are
intended to avenge, they will be less frequent; and it will, by taking
away the pretext for the atrocious acts, in a great measure insure the
infliction of the punishment they deserve. It is for these reasons that
the offence of adultery forms a chapter of this title.
Different punishments are awarded, to the unfaithful wife-to the
inconstant husband, who is so regardless of honour and decency, and
public opinion, as to keep a concubine in the house with his wife, or to
force her, by ill treatment, to leave it and give place to the usurper of
her rights. The reasons for this distinction, between the offence of the
husband and the wife, are obvious, and founded in nature. The para-
mour of the wife is also punished by fine and imprisonment; and to
avoid collusions, no prosecutions against the wife can be carried on un-
less the partner of her crime is joined in it. This regulation, too, will
be some check to the heartless seducer, who might otherwise look with
indifference on the penalty suffered by another for the crime of which.
he was the principal cause.
It is provided, under this head, that no prosecution for this offence
shall be commenced but on the complaint of the injured party, and that
it shall cease if they become reconciled before sentence.
The respect paid to the bodies of the dead, which from its universality
would seem to be a natural sentiment, has suggested, in all countries,
laws, or customs having the force of laws, forbidding as a kind of sacri-
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lege the violation of the receptacles for human remains, whether they
be embalmed, interred or consumed. The catacomb, the grave, and the
urn, were held equally sacred; and any intrusion upon them has always
not only been considered as immoral, but punished as a crime. It is
in vain that pretended philosophy affects to consider it as prejudice.
The feelings of the philosopher belie the language of his wisdom; and
however indifferent he might feel as to his own remains, he would not
see, without affliction, the body of a friend or relation torn from the
grave, even to promote the progress of science. It is in vain that we
are told, and are truly told, that the health and life of the living ought
not to be sacrified to a vain respect for the body of the dead, incapable
of suffering here, or feeling the ignominy of exposure; the reason may
be convinced, but the feeling remains. Science must be content with
subjects whose dissection will interest the feelings of none who are
alive. The bodies of those few, who, themselves above this prejudice,
devote their remains to the cause of science; those of malefactors who
die in the imprisonment inflicted by the law, must suffice for the im-
provement of surgical knowledge. But the laws must protect, in the
place of their lasting rest, the remains that are sacred to the memory of
surviving relations or friends. This natural feeling has not been ne-
glected in the code which is presented, and a proper punishment is
denounced against every violation of the sanctuary of the tomb.
We have now closed the review of those offences which,.powerfully
affecting the community in general, have been classed as public offences.
The seventeenth title commences the other division, distinguished as
Private Offences; and first of these stand such as affect individuals
in the exercise of their religion. In most other systems of penal law
this title is much more extensive. It there embraces a species of of-
fences carefully excluded from this. In those systems the dominant
religion is personified, and rendered by this fiction subject to be injured
by investigating its truth, or doubting its divine origin. Nay, the Su-
preme Being himself is sometimes impiously substituted for the mode
of worship or tenets of faith which prevail in the state, and his almighty
power is protected by vain laws to punish "offences against God and
religion"(a). The code offered to you does not contain this absurdity.
The exercise of religion is considered as a right; an inestimable one.
It is restrained only by those limits which must restrict all rights, that
they do not encroach on those of another; or, in other words, do not
change into wrongs. All articles of faith, all modes of worship are
equal in the eye of the law: all are entitled to equal protection. The
fallibility of human laws does not undertake a task to which unerring
wisdom alone is competent. The weakness of human laws does not at-
tempt to avenge the cause of infinite power; and injuries and insults to
the Deity, are left to the Being who asserts his rights to the exclusive
cognizance of such offences: "Vengeance is mine; I will repay, saith
the Lord." The code has not ventured to trench on this divine pre-
rogative; but the provisions of this title will be found to repress or
punish any wanton, or intolerant attempt to disturb or persecute; while
every necessary authority is secured to religious societies, for the pre-
servation of order among their members. So that the general principles
(a) 4 Bl. 43.
THE CODE OF CRIMES AND PUNISHMENTS.
175
announced in the preliminary chapter to the code, taken in connexion.
with the provisions of this title, evince that this state will give effect to
the noble experiment that has so successfully been tried in these re-
publics—of giving perfect liberty to conscience-perfect protection to
all religions, and substituting perfect equality for insulting toleration; an
experiment which demonstrates how fallacious is the argument of a
necessary connexion between church and state; which shows that true
piety may be preserved amid a variety of religious tenets; and proves,
that liberty in religion has the same influence on the great virtues,
which all sects consider as essential to produce eternal happiness, as
liberty, in government, has on those which are the basis of political
prosperity.
To repress injuries to reputation, is a duty more incumbent on legis-
lation since the introduction of printing has given so many facilities to
assail it; but the task is rendered more difficult, because the same in-
strument, usually employed in the work of detraction, is one that is
necessary to spread information, promote science, support political and
civil liberty, and propagate the truths of religion. To permit its un-
restrained employment for these noble ends, and at the same time pre-
vent its being used as a means of destroying reputation, is the task that
must be performed, if we wish to preserve consistency in this important
division of our Penal Code. This, it was believed, could be done only
by defining the offence, and then laying down as deductions from such
definition, a set of negative as well as affirmative rules, declaring what
species of assertion shall be punishable as illegal attacks upon reputa-
tion, and what shall be permitted in order to avoid the greater evil of
restraining the proper liberty of speech and of the press. In perform-
ing this task, alterations have been made in the present law, which
were necessary to adapt it to the letter and spirit of our constitution
the provisions of which have been adverted to in that part of the report
which treats of offences against the liberty of the press. These provi-
sions will be pointed out, although not in the order in which they stand
in the chapter.
1. The undefined, and perhaps undefinable, offence of libelling the
government, a court, or any other aggregate body, is abolished, as in-
consistent with the spirit of the constitution. It gives unqualifiedly
the right of using the press for the purpose of "examining the proceed-
ings of the legislature, or any branch of the government," and declares,
that no law shall ever be made to restrain this right. But of what avail
would this privilege be, if public bodies were guarded by the rules that
apply to libels against individuals by the English law? Every thing,
according to that law, that tends to bring a person into contempt or
disgrace, is a libel; and although the strictures are true, the guilt is not
lessened, but, according to some authorities, enhanced. Therefore,
every discussion of a legislative measure, or a judicial decision, which
tends to show folly in the one, or injustice in the other, would be
punishable as a libel; and the very end which the constitution had in
view would be defeated. The restriction that every one is liable for
the abuse of the liberty, clearly does not apply to any latitude of ani-
madversion whatever upon public measures; but to the injury that may
be done to private character. As to public measures, there can be no
abuse of the right. It must be unrestrained, or it is no right; for you
can rest the right of repression nowhere but in the hands of some pub-
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lic functionary; he must be guided by laws made by the legislative
power; and with this power of making the rule and of interpreting the
publication that is supposed to be obnoxious to it, the privilege of pub-
lishing and discussing would soon be brought within limits too narrow
to be of any value, unless it was guarded by the constitutional declara-
tion, and by laws made to give to it its full effect. Nor can the abuse
of this liberty be attended with any great or permanent inconvenience;
certainly with none that can be compared with that of the restraint. A
false representation of legislative proceedings can have little or no effect
in a country where the press is as free to correct as it is to spread it.
In a country where laws are made by a numerous body, whose pro-
ceedings are in public, misrepresentation is destroyed the moment it
appears, and injures no one but its weak or wicked author. The terms
of a law may be grossly misrepresented. The next day it is published,
and the falsehood is detected. No injury is suffered by the public; but
the penalty falls on the author, who loses his credit for veracity or dis-
cernment. The reasons which led to the passage of the law, are erro-
neously and falsely stated; they are ascribed to ignorance of the true
interests of the country-hard at the heels of the calumny comes its
refutation in the publication of the debates, and the public sustains no
injury from the calumny offered to a public body in its aggregate ca-
pacity. The same reasoning applies to the judiciary, considering courts
in their incorporeal capacity. The publication and the publicity of
their proceedings will always correct any false representations that may
be made; and the ideal beings which we personify for certain purposes,
under the names of legislative and judiciary power, will suffer no more
injury, will no more be brought into contempt by false and malicious
accounts of their proceedings, than the other power, which we call the
executive, and which it has never been thought proper to protect, in-
dependent of the persons who exercise it, by any law of libel. If,
then, there be any inconvenience in permitting the widest possible range
to the right of verbal or written discussion of public measures, it is one
of inconsiderable amount; but the evil of imposing the least restraint is
incalculable. Say that true representations shall be allowed-who will,
in order to inform the people, risk any publication of the measures of
their rulers? If incorrect accounts of judicial proceedings are punish-
able, who will venture on the task of a reporter? Publicity, that great
safeguard against corruption, will be destroyed: public opinion, which,
even in despotic governments, corrects abuses, will lose its force; and
the law of libel, with this extent, becomes one of the most powerful
engines for the overthrow of all free institutions.
But when any of the public functionaries, in either of the great
branches of government, are personally attacked-when animadver-
sions on public proceedings are made the vehicle for injury to private.
character-then the law protects them as it does any other individual;
and, although there can be no libel against the government, or the court,
yet the legislator and the judges are not left without the same redress
that is given to their fellow-citizens. The limits of this report will not
permit me to offer one-half of the reasons that present themselves to
justify the suppression of this species of libel from our codes. The
practical result however from them, observed in the general and state.
governments, is instructive. In most, if not in all of the states, libels.
against the government, and particularly against the judiciary branch
THE CODE OF CRIMES AND PUNISHMENTS.
177
of it, are liable to prosecution. Under the general government, since
the repeal of the unconstitutional sedition law, they are not. Yet the
tribunals of the United States, unprotected by any penalty, are certainly
not less respected, and perform their functions with as little interrup-
tion, from the licentiousness of the press, as those of the state govern-
ments.
In most cases, the connexion between cause and effect exists between
the subject of this chapter and that of a subsequent one-Of Duels. De-
famation, either real or supposed, is the cause of most of those combats
which no laws have yet been able to suppress. If lawgivers had origi-
nally condescended to pay some attention to the passions and feelings
of those for whom they were to legislate, these appeals to arms would
never have usurped a power superior to the laws; but by affording no
satisfaction for the wounded feelings of honour, they drove individuals
to avenge all wrongs of that description, denied a place in the code of
criminal law. Insults formed a title in that of honour, which claimed
exclusive jurisdiction of this offence. It is too late, perhaps, to eradi-
cate; but we may probably, by prudent provisions, lessen the evil.
With this view, some have been introduced into this chapter; all
of which are new in our criminal jurisprudence. By one, the court
may, if the circumstances of the case render it proper, direct that the
whole or any part of the punishment may be remitted, on the defendant's
making such apology, or after-amends, as the court shall deem sufficient
to the injured party. By another, where the jury find that the accused
spoke the words, or made or published the libel, and that the charge
is false, they are required specially to state that the charge is false
and unfounded, and the court may, on the demand of the prosecutor,
cause such declaration to be published at the expense of the defendant.
Lastly, if the defendant shall avow himself to have been the speaker of
the words, or the author of the libel, and acknowledge that the charge
they import is unfounded, or in cases where there is any ambiguity
that the charge was not intended to apply to the prosecutor, the punish-
ment shall be confined to the payment of costs and the publication of
proceedings. These several provisions, by extending the legal remedy
over part of the ground, now exclusively occupied by the principle of
honour, it is thought, may, in conjunction with the special enactments
in the chapter of duels, have a tendency to check that absurd and fatal
practice.
No words should be punishable, unless they are used with intent to
injure, or are such as, whatever may be the real intent of the party,
naturally have that tendency. But even to this there must be further
restrictions, such as charges necessarily made in the prosecution of a
public duty, either as a legislator, judge, advocate or witness, and confi-
dentially by way of advice, or called for in self-defence. These and other
exceptions are specially declared in the code, and they are generally
taken from those English decisions which have been considered as the
most consonant to the dictates of reason. A variance, however, from
that law will be found in making defamation, by words spoken, as much
an offence as if they were written. By the English law, although
these give a right of private action, yet be they ever so malicious and
injurious, be the charge which they employ ever so atrocious, they
cannot be punished as an offence. For this difference it was supposed
no substantial reason could be given, and it was believed also that it
X
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would lead to other serious inconveniences. The satisfaction by private
suit must necessarily be of a pecuniary nature. Men, therefore, who
think highly of reputation, are unwilling to have theirs appreciated by
that standard. They will, then, either suffer the injury to go unpun-
ished, or they will in this, as in most other cases where no remedy, or
an inadequate one is provided, take the law into their own hands;
and it is no improbable conjecture, that a very great proportion of the
many breaches of the peace, and deaths by duels, which originate in
verbal provocation, might have been avoided, had an adequate satisfac-
tion been provided by law. This distinction, however, is established,
that while no action can be sustained for words spoken, unless they
are false; yet, when they are deliberately written and published, with
a view to injure the character, they are punishable, although they
are true, unless they were used from some motive of public good or
private duty. This distinction has received the sanction of the highest
legal authority, and has been practised under in one or more of the
states without any inconvenience. It is a correction of our present
law, which forbids the truth to be given in evidence in any case of
libel. If the truth were a justification in no case, one half of the utility
of the press would be destroyed. The misconduct and incapacity of
those already in office, and the want of talent or character of the candi-
date, would be protected from exposure. If it were a justification in
every case, the wanton and malicious exposure of foibles, misfortunes
or defects, might, with impunity, make the life of an individual miser-
able, while the anonymous author remained unknown; and would not,
as in the case of the same words spoken, be restrained by the fear of
personal vengeance.
The second chapter of this title provides a punishment for an offence,
frequent in times of political excitement, the hanging or burning an
obnoxious person in effigy, the relique of a barbarous state of socie-
ty, and the proof of a ferocious disposition, fostered by these riotous.
proceedings, and which, unless restrained by the laws, would realize
the cruel indignities of which they are the symbol. Combinations to
destroy reputation by false accusations; and threats of making them
for the purpose of extorting money, are the subject of the third chapter
of this title. The fourth, which concludes it, relates to a mode of injur-
ing reputation, not unfrequently resorted to by the ingenuity of malice,
by publishing false writings in the name of another, tending to bring
him into ridicule or contempt. The happiness of individuals, the quiet
of families, and the peace of society, depend so much on the protection
given by the laws to reputation, that this title is more minute in its
provisions than many of the others. The innovations that have been
introduced, it is believed, will be justified by a close examination of their
tendency, and that no parts of the present law on the subject have been
omitted or changed, but such as can be justified by the most cogent
reasons.
We now come to the important title of Offences affecting the Per-
son. And, before we examine the several acts which are made punish-
able under this head, it may be necessary to remark, that, instead of
beginning, as is usually done, with offences of the highest degree in
this class and then descending to the lowest, the order in this code is
reversed, and the ascending scale has been adopted for reasons which
are not those of mere arbitrary arrangement. By beginning with the
THE CODE OF CRIMES AND PUNISHMENTS.
179
lowest injury that can be offered to the person, an assault, you lay the
foundation for comprehending the definitions and descriptions of all
the others which are only aggravations, either in degree or by intent; and
having defined all the intermediate degrees between it and murder, you
arrive at the simple conclusion that every homicide, which is not in-
cluded in any of the preceding classes of crimes, is murder. Whereas,
by beginning as is usually done at the other end of the scale, you must
explain all the lower degrees which are included in that with which
you begin, or your definition will not be understood. For example :
if we begin with murder, we can only cause it to be comprehended
by saying that it is homicide. We must then anticipate, by defining
homicide; and when we come to the circumstances and intent which
distinguish murder from other homicides that are justifiable or excus-
able or criminal in a less degree, we must travel on untrodden ground,
which we must pass over again when we come to speak of these other
kinds of homicide. But by advancing regularly, we clear the way as
we go; and by getting a definite idea of the several kinds of homi-
cide, ascending through the different degrees, from the slightest to the
highest guilt, our march is uniform; each definition is the foundation
for that which succeeds, until we come to the last; and we may form
a clear conception of the crime of murder, by calling it such homicide
as does not fall within any of the preceding classes.
With this notice of the mode of classing the offences against the
person, the very few observations that will be made on the details of
this title, will be readily understood.
Assault, the lowest injury of this kind, and battery, which usually
accompanies it, do not materially vary in their definitions from those
contained in the English law; but the chapter, among other details,
contains a minute enumeration of all the circumstances which will
justify or excuse violence offered to the person, a matter on which it is
of the highest importance that the law should be not only explicit, but
well understood by every individual in society. Where the same act
may be indifferent, or a duty, or a crime, that legislation is surely im-
perfect which leaves any thing to conjecture on such important points.
Yet however rich our present law may be, in the number of decisions
to elucidate this branch of personal duty, it is most wofully deficient
in that order, selection and publicity, from which the people can learn
its will. The code purports to remedy this evil; to give to the most
prominent and best founded of these decisions the force of positive law
to give arrangement and order to the principles on which they are
founded, and enable the citizen to know what species of violence he
may resist, and in what degree; to what he is bound to submit; in
what cases and in what degree he is, in his turn, justified in exercising
it; and to trace precisely the line which he cannot pass without in-
curring the penalties of the law. The different sections of this chap-
ter mark, with a precision which it is hoped will prove sufficient, the
aggravations of this offence, arising from person, place, intent and
degree.
;
Illegal imprisonment forms the subject of the second chapter. The
first section contains the detail of the different modes by which the
detention, constituting this offence, may be effected, whether by assault,
by actual violence, by threats, or by some natural obstacle opposed to
the power of locomotion. Each of these are developed and illustrated;
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INTRODUCTORY REPORT TO
and the cases in which detention of the person of another may be
justified, are set forth in the text. A subsequent section, as in the cases
of assault and battery, specifies the aggravation to the offence, caused
by the purpose or degree; and that species of illegal restraint of liber-
ty, applicable only to the female sex, known by the name of abduction,
is provided for and defined in the concluding section of this chapter.
The next chapter relates to an offence of the most heinous nature,
whether we consider its effects on the sufferer or those with whom
she may be connected. Whenever it occurs, the best feelings of our
nature are roused against the brutal and ferocious perpetrator, and the
detestation in which the ravisher is held, has almost universally in-
duced legislators to increase the severity of the punishment, without
considering that his chance of impunity increases in the same ratio.
By our present law it is one of the few crimes punished with death.
In addition to the general reasons for substituting a milder penalty,
which apply to other cases, there is one which makes it peculiarly
necessary in this. It is a crime in which conviction, from its nature, must
for the most part depend on the testimony of a single witness; the
odium attached to its perpetrator generally supplying the deficiency of
other proof. It is of all accusations, therefore, that one in which the
innocent have most to fear, and in which an irremediable punishment
ought most to be avoided. But though the delinquent ought always to
be kept within the reach of the pardoning power, his punishment
should not be light: it is imprisonment for life. Some innovation is
introduced in the definition of this crime. When the object is attain-
ed by fraud, the consent, though apparently given, is as much wanting
in reality, as when violence is applied. Two cases, in which such
fraud shall be equivalent in guilt to force, are specified where it is
obtained by the administration of soporific or other drugs, and where
the perpetrator personates the husband of the sufferer. The other
provisions of this chapter are generally accordant with the present law.
:
The destruction of human life, in its inchoate state, does not come
within the definition of homicide. It, therefore, requires a special
provision. This is made in the fourth chapter of this title. Whether
the object be effected by external violence, or the administration of
drugs internally, and whether with or without the consent of the
woman, the crime is committed; the punishment is increased if the
delinquent be a physician or surgeon; and if death is caused by the
attempt, it is murder. Exceptions, however, are made of the case
where the effect is produced by medical advice, with the intent of sav-
ing the life of the mother.
A great personal injury may be sustained by the swallowing or in-
haling of deleterious substances. If these are maliciously administer-
ed, it constitutes a crime which forms the subject of the fifth chapter
of this title, in which the punishment is graduated according to the
intent and effect of the offence.
We come now to the consideration of the important title of Homi-
cide. The first section of this chapter lays the foundation for all the
others, by the definition of this act, and illustrations and explanations
to remove every doubt as to the force of the different words used in
such definition. The three great divisions used in our present law
are retained, and homicide is considered, in the subsequent sections,
as justifiable, excusable or culpable. All of these are defined, explained,
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181
and illustrated. The rules by which they are to be distinguished are
clearly laid down, and the exceptions specially noted. Homicide is
justified, by the requisition of law, in cases where death is legally inflict-
ed as a punishment, or where it occurs in resisting an enemy in the
usual mode of warfare, excluding poisoning and assassination, which
terms are defined in the text. It is also permitted, and therefore jus-
tifiable in the performance of other duties to the state. The first of
these is the execution of the lawful orders of magistrates or courts.
This general principle is in conformity with our existing law; but
there is no part of it in which accessible and clearly intelligible rules
are more wanted for the government of the citizens. They are called
on by the first duties to the state to obey the orders of the magistrate,
if they are legal; if they are illegal, they expose themselves to the
highest penalties of the law. One mode of executing the order en-
titles the citizen, who performs the duty, to the highest praise, and
the other subjects him to capital punishment. What in one man, in
relation to his condition or offence, is a duty, in another is a crime;
and yet the rules by which we are to be guided through these narrow
winding paths, bordered by snares and precipices, in which a false
step entangles us in ruin or sinks us to destruction; these rules
are not to be found in the positive enactment of our law. A few gene-
ral principles are laid down by elementary writers; numerous and
sometimes contradictory practical deductions are made by decisions in
particular cases; and the magistrate and the officer, as well as the citi-
zen who is to aid them, are left at their peril to discover the law, in
the different volumes in which it is contained, and to reconcile the con-
tradictory opinions and decisions of which it is composed. This de-
fect in legislation is an obvious and fatal one. If the rules cannot be
ascertained until the case arises, then no one ought to suffer for con-
travening them, for they are no rules. It is a solecism to call them
such. If they can be established, it is a cruel and a wicked omission
to neglect it. It is a tyranny to establish and not promulgate them.
But rules laid down in books, which, from their language, their ex-
pense, or other circumstances, are not accessible, although they may be
printed and published, are not promulgated. The conclusion from
these premises is irresistible, easily drawn, and nowise honourable to
the state of our criminal jurisprudence.
An attempt is made to remedy this evil in the proposed code. Se-
veral subdivisions of this section contain, in order; first, the rules as
to the order itself which is to be executed, and the magistrate from
whom it emanates; and secondly, those which regard the person exe-
cuting it, and the manner in which the duty is to be performed. To
review these would be to repeat the provisions of the code, which is
the less necessary, as most of them are founded on principles establish-
ed by the best decisions under our present law.
The next duty to the state, in the performance of which homicide.
may be justified, as analogous to the former, is that which arises from
the opposition to rebellion, insurrection and riot. Here again the
same importance of regulation is preserved; and is as well in this part
of the code, in which the principles are laid down, as in the Code of
Procedure, will be found all that is necessary to guide the magistrate.
in giving, and those whose duty it is in executing his orders on the
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INTRODUCTORY REPORT TO
important subjects of arrests, self-defence, and the suppression of
breaches of the peace.
But we have a duty to perform, not only to the state, in obedience to
the lawful orders of its magistracy, and in resistance to its foreign
and domestic enemies; there is also another which we owe to our fami-
lies and ourselves, in the necessary defence of person or property.
Here again we find the same deficiency in our existing law, that has
been pointed out in the beginning of the review of this chapter; and
here again that deficiency is attempted to be supplied by the establish-
ment of minute, but intelligible and distinct rules, to designate what
resistance may be offered to aggression, and to limit its extent both in
nature and degree; and with this ends the division of justifiable homi-
cide.
The designation of that which is excusable, is contained in a single
and a short section. The leading distinction between this division
and that which preceded it is, that the homicides described in the first
were voluntary, but are permitted on some principle of public good
or private right; but in this, are involuntary, but unavoidable by com-
mon prudence or care. Thus far, from the very definition of an
offence, none of the acts coming within. the purview of these sec-
tions can be denominated such. The next section, however, describes
those acts of homicide which assume that character. When we in-
quire whether any particular act is an offence, this mode of classifica-
tion gives us, in jurisprudence, the advantage of an operation some-
thing like the arithmetical one of proving one rule by another. To
show a given act of homicide to be an offence, it must not only be
brought within the definition of one of the acts of that nature which
are designated as culpable, but it must be excluded from those which
it is declared may be justified or excused. The eighth, and last,
section of this chapter treats of these culpable homicides, and each
of its six subdivisions contains the description of one of these offences,
which, beginning with the lowest degree, where no culpable intention
can be attributed to the offender, rise to murder in its appalling forms
of assassination and parricide.
Those who are satisfied with the provisions of the English law,
which knows only two degrees of culpable homicide, must be startled
by the number indicated in this chapter. But it is hoped, and believed,
that a little attention to the subject will show the necessity of making
them. By our present, which is the English law, all culpable homi-
cide is either manslaughter or murder. The first description embraces
two kinds of offences that are evidently very different in degree. It
confounds voluntary and involuntary homicide in the same name, and
applies to both the same punishment. The destruction of human life
by want of care, even without any design to do the smallest mischief,
is certainly reprehensible; but surely, a wise lawgiver would not say
that it was the same offence with that of designedly inflicting death,
under the influence of passion, although that passion had adequate
cause in a violent provocation; nor would he identify with these, death
caused by negligence in the doing of an unlawful act not amounting to
a crime. Yet, all this is done by our present jurisprudence; and this,
with some other defects, are endeavoured to be remedied by the sys-
tem which it is proposed to substitute.
The preceding sections having taught us what homicides were justi-
THE CODE OF CRIMES AND PUNISHMENTS.
183
fied, permitted, or excused; those described in the one we are now re-
viewing, need no other definition than that they are such as cannot be
brought within any of the preceding classes; or, in other words, that
those come within the description of culpable homicides which cannot,
according to the preceding provisions, be justified or excused. Next
comes the designation of the different degrees of culpability. Here
the first great distinction, between negligence and design, is marked,
and culpable homicides are divided into negligent and voluntary. But
as different degrees of negligence mark a greater or less attention to
the value of human life, and as extreme provocation, or the want of
any, shows a greater or less degree of malignity in the voluntary in-
fliction of death, so each of these require subdivisions, in order to de-
signate the degree of guilt, and assign its correspondent punishment.
The first and lowest degree of negligent homicide is one that differs
but little in its circumstances from excusable homicide; but as it does
differ, it must be an offence. It is defined as homicide involuntarily
inflicted in the performance of a lawful act, in which there is no ap-
parent risk of life, by ordinary means; but without that care and pre-
caution which a prudent man would take to avoid the risk of destroy-
ing human life. It will be best understood by a perusal of this division
of the section. But it may here be generally comprehended by repeat-
ing one of the examples by which it is there illustrated. When
death is casually inflicted by discharging fire-arms which are believed
not to be loaded, without examining whether they are so or not, it
constitutes this offence. If the examination be made, and owing to some
unknown cause, although loaded, they appear to be empty; or, if un-
known to the person using them, they have been loaded immediately
after the examination, due caution has been used, and there is no of-
fence." A very slight punishment is annexed to this offence, and I
doubted long whether, as the definition assumes the absence of any intent
to injure, the horror and grief naturally caused by so fatal a consequence
would not, in itself, be a sufficient punishment for the negligence; that
these sensations must inflict a suffering much more severe than any the
law could with justice award, cannot be questioned. But, after much
hesitation, I concluded, that this consideration would not justify me in
omitting to place so fatal an act of negligence in the class of offences.
It would induce us totally to excuse all negligent and even many vol-
untary homicides. The depravity that can conquer those feelings of
remorse and mental anguish, with which nature avenges the destruction
of human life, is not suddenly, easily, or frequently attained.
who, yielding to sudden passion, takes the life of an adversary who
has provoked him, feels the operation of this internal engine of punish-
ment as keenly as he does who is the negligent or even the casual in-
strument of a similar event. Nor is even the deliberate murderer
exempt; and the poets who have painted the most closely from nature,
have always truly represented the subsequent remorse to augment in
proportion to the previous atrocity of the murder. Richard is haunted
He
by the ghosts of his victims. Macbeth exclaims, "I scarce can think
on what I've done-look on it again, I dare not ;" and the reason of
his tiger-hearted instigator and accomplice reels under the weight of
her remorse. Indeed, of the two, the homicide from sudden passion
may reasonably be supposed to be endowed with keener sensations, and
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INTRODUCTORY REPORT TO
therefore more sensibly to feel the pang of remorse, than he does who
has shown so much indifference to the life of a human being as not
to take the proper precautions for its preservation.
Besides, the frequency of these accidents, as they are incorrectly
called, seemed to demand some interposition of the law. At present
they are considered and classed as excusable. But when they shall be
stigmatized as offences; when the voice of the law shall direct the
exercise of that circumspection which prudence now in vain commands,
it is believed that greater caution will be the result; and instances are
not wanting to show, that a positive inhibition, accompanied by the
fear of a comparatively slight punishment, has prevented men from in-
curring risks and rushing on dangers of the most serious nature(a).
The next offence is negligent homicide in the second degree. It
differs from the former only in the greater want of caution. It is de-
fined as that which is involuntarily committed in the performance of a
lawful act, but under circumstances, in a manner, or by means, which
cause an apparent danger of inflicting death, without due precaution
to avoid such danger. Every word of this definition that could, by
the most forced construction, carry any more than one meaning, is
carefully explained in the text; and the whole is illustrated by examples,
of the crime generally; of the circumstances; of the apparent risk,
as applied to the manner of doing the act; and to the means used.
For all these reference is made to the text. As this is a comprehen-
sive division, much greater latitude of discretion is given to the judge,
in the apportionment of the punishment, than is usual in other parts of
the code.
The concluding division under this head, of negligent homicides,
relates to such offences, of this nature, as are committed in the perform-
ance of other unlawful acts. This is only to be remarked inasmuch as
it graduates the penalty, according to the nature of the illegal act, in
the performance of which the homicide was negligently committed.
We now come to the class of Culpable Homicides that are voluntary.
Still pursuing the same plan, of making the preceding definitions a
key to those which follow, voluntary homicide is declared to be a crime
in all cases where it cannot be justified or excused by any of the rules
before laid down. It comprises two divisions only, manslaughter and
murder. These denominations are retained from our present law; but
the first, being stripped of the whole class of negligent homicides, no-
thing remains for it but those acts by which the life of another is taken
by one who is under the influence of a sudden passion-a crime so dif
ferent from that which produces the same fatal effect, after deliberation,
as to call for a different name, and to merit a milder punishment. But
it is still a crime; one difficult, under certain circumstances, to distin-
guish from murder; as fatal in its consummation, but drawing the dis-
tinction made in its favour by the law from two circumstances: some
indulgence to the infirmity of our nature, when passion is excited by
(a) A traveller in Prussia, during the reign of Frederick, has told us, that the cavalry re-
views of that great disciplinarian were, at one time, very much embarrassed by the dragoons
frequently falling from their horses, whereby many of them had their bones broken or were
trampled to death. A general order made a fall punishable with thirty-nine stripes; after
which it was found, that their horsemanship was so much improved, that falls became very
rare.
THE CODE OF CRIMES AND PUNISHMENTS.
185
an adequate cause, and some reprehension for the injury that provoked
the passion. The difficulty of drawing the line that separates this crime
from the heinous one of murder; the high importance that it should be
distinctly drawn, were felt in framing the provisions of this section.
The numerous cases in the English law on this subject were studied,
and all those principles drawn from them which could give precision
to the rules that are laid down. Yet, after all' that has or can be
done to give precise limits to the definitions of crimes, which depend
so much as this does on the ever-varying, and for the most part, the
inscrutable workings of the perpetrator's mind, much must be left to
the discernment of the judge. But, although we cannot do all, it is
our duty to do that which is practicable, and, in cases of this high im-
portance, to leave as little as possible to discretion.
Manslaughter, then, is defined to be homicide committed voluntarily,
under the immediate influence of sudden passion, arising from an ade-
quate cause; and it is provided, that all the terms used in the definition
are to be strictly construed in applying it to any particular act. Each
of these terms is commented upon in the law. General rules are pre-
scribed for deciding what species of injury shall, and what shall not,
be deemed an adequate cause for the passion that causes the act; and it
is supposed that the intention of the law on this important point, is so
clearly expressed, as to leave to the jury only the task of deciding, in
each case, whether the acts and intentions of the party bring him within
its purview.
Ĥaving defined, described, and illustrated by examples, and confined
within precise rules, all the other species of homicide, we are now to
consider the last and highest description of this crime-murder. The
particular attention of the legislature is called to the definition of this
crime in the new code, and it is earnestly desired that every word of
it may be weighed, and that it may be contrasted with the description
of it given by our present law, and that the one may be sanctioned
which is the most clear and explicit, and which requires the least re-
ference to other sources for understanding it. By the code it is thus
described: "Murder is homicide, inflicted with a premeditated design,
unaccompanied by any of the circumstances which, according to the
previous provisions of this chapter, do not justify, excuse, or bring it
within some one of the descriptions of homicide herein before defined."
This description was, as the projected code was first printed, contained
in two articles. The sense was precisely the same, but the amendment
consolidated and made it more concise, and was therefore preferred.
If, then, a clear idea in the preceding parts of this chapter has been
given of the other descriptions of homicide, there can be no difficulty
in forming one of this, that is not liable to error. An act of homicide
occurs. Did the circumstances justify it? Did they excuse it? Does
it come within any of the descriptions of negligent homicide? Is it
manslaughter? If either of these questions be answered in the affirma-
tive, it cannot be murder. The advantage of this mode of description
over that of a simple definition is evident; for should any words, con-
tained in that definition, be liable to misconstruction, an act, properly
coming within the lower degree of that offence, might be brought within
the definition of the higher. The act of taking human life is the same
in all. The attention should, therefore, if we mean to avoid error, be
drawn to all the circumstances that would bring the act into a lower
Y
186
INTRODUCTORY REPORT TO
The
degree of offence, before we inflict on it the punishment due to the
highest; and the law should be so framed as to oblige those who ad-
minister it to make this examination. By the new code, no jury can
convict―no judge can condemn for murder, until they have carefully
examined all the lighter shades of homicide, and are convinced that the
circumstances of the case do not bring the accused within any of them.
The form of the law imposes this obligation. It cannot be dispensed
with; for there is no other description of the crime of murder than that
it is homicide that is not one of those before described. Now take the
English description of the same crime, and see whether the same result
is produced. Coke's description of the crime is the one most generally
sanctioned by decisions and commentators. It is this: "when a person
of sound memory and discretion unlawfully killeth any reasonable
creature, in being, and under the king's peace, with malice afore-
thought, either express or implied" (a). Now suppose a jury empan-
nelled to try an indictment for murder, and after the circumstances of
the case have been detailed by the evidence, this description is read to
them, and they are directed by the court, under the sanction of their
oaths, to apply it to the case. There is scarcely a word in it that, to
a conscientious man, will not afford matter for serious doubt.
perpetrator must have been of sound memory and understanding.
What a scope does this give for equivocation. What a field does it open
for inquiry. What has the soundness of memory to do with the act?
Be the faculty ever so imperfect, how does it affect the guilt? And as
to discretion, if a sound discretion were necessary to constitute guilt,
no one could be guilty; for surely he commits the highest indiscretion.
who takes the life of another, and exposes his own to consequences of
detection and punishment. The killing must be also unlawful. Here
we have one of the features of the description contained in the code,
but without the faculty which it affords of determining, by a reference to
a few preceding pages, whether the killing be lawful. The person
killed, to constitute the crime, must be a reasonable creature. Neither
a newborn infant, nor an idiot, nor a madman, nor one suffering in the
delirium of a fever, or stupified by opium or liquor, comes within this
part of this description according to the plain meaning of the words.
Again, who is in the king's peace? What is malice aforethought? Is
there any malice that is after thought? What is express malice? When
shall it be implied? Thus we find that there is scarcely a word in the
description of a crime so important to be known, that will not raise at
least a doubt in the mind of a man of common understanding; and it
would be difficult, perhaps, to prove any description of the crime, which
would sufficiently give us to understand its precise meaning, without a
reference to the definitions of those homicides which were not included
in it. I am certainly aware that most of these terms have been ex-
pounded by commentators and illustrated by decisions, and that a re-
course to these sources of information would teach us what construction
the best lawyers and judges have put upon them; but still the evil re-
There is no source to which we can look for the absolute cer-
tainty on which the conscience of a juror ought to rest, who is sworn
to decide, and the definition given to him as the text of the law: he
has a right to put the construction which his understanding adopts, upon
curs.
(a) 3 lust. 87.
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187
the doubtful words; and there are cases, too, in which the expositors
to whom he is directed, are not themselves agreed, more particularly
in what respects the construction of malice, express or implied-the
great pivot on which this definition turns-and one of which it is so
difficult to form a definite idea, that I have purposely excluded it from
the description of this offence in the code.
I may be deceived, but if I am not more so on this than on any other
provision in the work, the law on the subject of homicides, in their
various grades, from innocence up to the deepest guilt, is rendered by
the code more clear, more consonant to reason, and more susceptible of
easy execution than it is as it now stands.
Our present law knows but one grade of murder. Yet there are evi-
dent aggravations which ought to be marked by a discreet legislature.
Four have been adopted in the code that is presented to you.
INFANTICIDE, the first grade above that of common murder, is distin-
guished by its disregard, not only to the feelings of humanity, but of
nature; but, on the other hand, its atrocity is so much lessened, by the
deep and powerful sense of shame which usually prompts it, that I
doubted some time whether it should form a separate class. It, however,
after due consideration, seemed properly to occupy a place between
that kind of voluntary and culpable homicide, committed under cir-
cumstances that would not reduce it strictly to manslaughter, but caused
by some provocation, yet distinguishing it from the deeper guilt of
ASSASSINATION, which is the next grade.
This characteristic is applied to murderers, from considerations drawn
from the purpose of the act, the means by which it was accomplished,
or the condition of the person suffering by the crime. The purpose
gives it this name when it is committed in order to effect another crime,
or to conceal one previously committed, when its object is to obtain an
inheritance, or when a reward is given and taken for its commission.
The means characterize murder as assassination, when it is perpetrated
by lying in wait, by arson, by poison. The condition of the party
murdered, and his actual situation, also raise the guilt into that of as-
sassination, under the following circumstances: when the sufferer is a
woman; a man above the age of seventy; a minor under the age of six-
teen; a person in a dwelling-house at night; asleep any where, or travel-
ling on the high-road. All these situations and conditions imply help-
lessness and security. They add cowardice and treachery to the guilt
which invades them, and therefore rank it in this grade of crime.
But if these cases of implied security and protection demand the
severe animadversion of the law, in a much higher degree does that
of express trust and confidence, and positive treachery. I have, there-
fore, incorporated as a third class of aggravated murder, that known
to the Scottish law by the express name of MURDER UNDER TRUST,
and have described it as "that which is committed by persons stand-
ing in the following relation to the party murdered, that is to say:
husband, wife, tutor or curator, ward, collateral relations within the
second degree inclusive, master, servant, schoolmaster, host, guest,
physician or surgeon; and finally, if the murder be committed by one
upon another, who has reposed confidence of safety in him, on an ex-
press or implied promise of fidelity or protection. Murder committed.
by a guide or conductor on the land, or by the master of a vessel by
water, upon a traveller whom he has undertaken to conduct, are ex-
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amples of this last description of murder under trust." The code, in
this as in other cases, contains articles explanatory of all the words used
that might be understood in more than one sense.
PARRICIDE is the last species of murder. The English law, while it
punishes the murder of a master by a servant, as a species of treason,
expresses by no mark of particular abhorrence that of a father by his
son. Solon, it is said, thought it too atrocious to be supposed possible,
and therefore omitted the mention of it in his code. Modern times
afford too many proofs of its recurrence to justify the same expressive
silence with respect to it.
The punishment for murder, unaggravated by any of the circum-
stances which bring it within either of the denominations above men-
tioned, is imprisonment for life. The Code of Prison Discipline contains
the increased privations, and aggravations of punishment that are applied
to higher degrees of this crime.
Suicide does not enter into the catalogue of offences, for the reasons
offered in the report on the plan of a penal code(a); but a penalty is
provided to operate upon those who aid the unhappy sufferer in com-
mitting this act of desperation, or who, having the power, do not prevent
its execution.
This title could not conclude without a chapter in relation to duels;
that practice which, in modern times, seems to have proved how ineffi-
cient are all laws when opposed to public opinion, and to what degree
the fear of shame will prevail over that of punishment.
In the whole scope of criminal legislation there is no subject which
presents greater difficulties. Severe penalties have been denounced
against it in vain; and it is the more difficult to be eradicated, because
it prevails most where courage, a fear of disgrace, and a sense of personal
dignity, are most perfect.
One cause of this disorder in society has been anticipated in that part
of this report which treats of injuries to reputation. Where the law
gives no such relief as ought to satisfy those who conceive themselves
disgraced by imputations on their honour or integrity, as long as honour
and integrity are necessary to happiness in society, human passions will
endeavour to supply the deficiencies of the law. But the law, as it now
stands, gives a partial remedy in those cases of defamation only, which
imply a want of integrity or impute the commission of a gross crime;
and we accordingly find that redress is sought by an application to the
laws for injuries of that nature more frequently than by appeals to arms;
while the charge of mendacity, or of a deficiency in the courtesies of
life, are more frequent causes of duels than imputations of serious crimes.
Why is this? It is because the law gives some relief in the one case—
none in the other. One part of the remedy provided by the code is
suggested by this consideration. The other is drawn from the motive
that leads to the offence: this is, in most cases, a desire to possess that
degree of standing in society which raises the possessor in the esteem
of his fellow citizens, and gives him a right to expect those distinctions
and offices to which his talents may entitle him.
If then we can procure an adequate remedy by law for injuries to
reputation, and make an exclusion from office and civil distinction the
consequence of any attempt to usurp the functions of the law: if, by
proper penalties, we give to those who reluctantly aid in encounters of
(a) See page 16.
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189
this nature, a good pretext for refusing their co-operation, while we
take away that which the law now affords them, for refusing to give
evidence against their principals, we shall do much to lessen the fre-
quency of this practice, and by giving a turn to public opinion, in time,
to extirpate it.
Beginning at the source of the evil, the first provision of the chapter
is to make it punishable to use insulting words, or to make an assault
with the intent either of provoking a challenge or disgracing the party
if he should not give it; and in order that a prosecution, for such an
offence, may be made the means of producing an honourable satisfac-
tion, the next article provides, that if the defendant shall make any de-
nial, explanation or acknowledgement, which, in the opinion of the
court, ought to satisfy the honour of the prosecutor, they shall direct
the same to be published, with their opinion, declaring it to be satisfac-
tory, and dismiss the defendant; and where no such acknowledgement
is made before judgment, it shall, if given against the defendant, con-
tain a clause that it shall be void as to all but costs, in case the defend-
ant shall make such acknowledgement as shall be satisfactory to the
prosecutor; and in any prosecution under this article, if the offence be a
charge affecting the honour or reputation of the person making the
complaint, and the proof on the trial show such charge to be unfounded,
the court shall make that declaration in the sentence, and cause it to be
published at the expense of the defendant, and the truth of such charge
shall, if the prosecutor desire it, be tried by the jury.
These provisions are entirely new. They give, what the law has
hitherto denied, satisfaction for those species of insults which most
commonly lead to duels, and satisfaction of a species that the most
chivalrous need not blush to seek or to receive; and insomuch, they
are calculated to prevent those fatal encounters which few, if any of
those who engage in them, would not avoid, if any other mode were
provided by which they could escape disgrace. If, however, the parties
refuse this remedy for their wrongs, and give or accept a challenge to
fight a duel, although it should not take place, the penalty is imprison-
ment in close custody from two to six months, and a suspension of
political rights for four years; if the duel take place, the penalty is in-
creased by a longer period of imprisonment, and a protracted suspension
of rights both civil and political, in proportion to the injury resulting
from such conflict; if it result in death, the imprisonment is extended
to four years; and all political rights, and the civil rights of the first
and third class, are forfeited for ever. If the wound which produces
death is inflicted by treachery, it is declared to be murder by assassina-
tion.
The treachery intended by this provision, is defined to be the
breach of any rules made for conducting the combat, or by taking any
other advantage that could not be supposed to have been intended to be
given; and whatever may have been the rules agreed upon, it is declared
to be assassination, if the mortal wound be given after the party is dis-
armed or otherwise incapable of resistance; or, if the party inflicting.
the mortal wound have obtained the power of doing it without risk to
himself by the effect of a chance previously agreed upon. These two
last provisions are intended to put an end to a ferocious practice some-
times resorted to in duels; which it is thought may be done, as much by
stigmatizing them by the designation of treachery and assassination, as
by the severe punishment assigned to them, which punishment there
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will, in such cases, be no disposition in the prejudices of jurors to avoid
inflicting. However imperative we may make the language of the law,
it loses its force when it includes in the same prohibition, by the same
name, and under the same penalty, acts different in their motives, cir-
cumstances and effects. We may, in our statutes, give the name of
murder to death occasioned by a duel; but the world will not adopt the
appellation; and a combat, sanctioned by the irresistible command of
public opinion, and marked by no circumstances of peculiar malignity,
will never be considered, prosecuted or punished, as an assassination.
If you wish to have it punished at all, it must be by its own name, and
a proportionate punishment, nor must that be an infamous one. Put
what is called a fair duellist on a footing with a thief or a murderer, and
you assure his impunity. Consign him to a temporary, close, but not
degrading imprisonment; take away from him all hope of political pre-
ferment; and seeing that his conviction and its consequences cannot be
escaped, he will gladly avail himself of the opportunity offered by the
laws, of throwing off, without disgrace, the tyranny of custom; for
there is this peculiarity in the offence of which we now speak, that nine
times in ten it is most reluctantly committed by all who are parties to
it. Let the severe punishment, then, be reserved for treachery and fe-
rocity; inflict a mild penalty on duels fairly conducted; punish the in-
sults which lead to them, and you will insure the execution of the law;
furnish a fair excuse for even the most high-minded to avoid incurring
the disadvantages which it creates, and do more than has been yet done
to abolish this barbarous, unequal and unjust mode of settling private
quarrels.
If prosecuting officers had always used the same diligence in bringing
duellists to justice that they have shown in the case of other offenders
against the laws, although the accused might escape the severe penal-
ties of the law from the lenity of jurors, yet the risk, inconvenience,
solicitude and expense of the trial, would deter many, particularly those
who had aided as witnesses or seconds; but there seems to be a general
tacit consent, on the part of the magistrates, attorneys for the state, and
grand jurors, that there is something dishonourable in such prosecutions,
and that they form an exception to the oath of office, and are not to be
prosecuted, unless on the most direct application, and on producing the
fullest proof. How else shall we account for the open, notorious, flagrant
breaches of the law so frequently taking place almost in the presence of
the magistrate, the grand jurors, and the prosecuting officer, without
any instance of prosecution. To remedy this evil, the code provides,
that the attorney-general and district attorneys shall make a declaration
on oath, and also make an honorary declaration, that they consider the
execution of laws against duelling as forming no exception to their duty
of carrying the laws into effect; and that they will, by all lawful means,
prevent any intended duel which comes to their knowledge, and pro-
secute all offences against that part of the code. Still further to prevent
this offence, no person elected or appointed to any office, civil or mili-
tary, judicial or executive, shall exercise the same, unless he shall de-
clare, on oath, that he has not and will not commit any of the offences
described in this chapter. I was not unapprized when these provisions
were recommended, that this expedient had been partially resorted to
in some of the states, and that it had not been deemed a proper remedy.
But I apprehend, that in the cases where it has appeared to fail, it
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191
was not fully or fairly tried; and I have from the first authority, that
in one state, at least, it had proved so nearly effectual as to render
duels extremely rare where they had formerly prevailed to a most
alarming degree. In a letter, with which I have been favoured by
the chief-justice of the United States, he says: "On the subject of
duelling, some contrariety of opinion prevails. I am among those
who think that the utmost wisdom is required, and ought to be
exerted, for its prevention. Originating in a sense of honour, the pass-
ion from which it springs must be consulted, if we hope to suppress it.
We must array ambition against this false honour, as its only equal
competitor in a young and ardent mind. The privation of political
rights, which you propose, is, I think, particularly adapted to this
offence. The efficacy, as in most other cases, depends on the cer-
tainty that the law will be executed. Were you to rely on public con-
victions alone, this certainty would not exist. Even where death
ensues, prosecutions will not always be instituted. When it does not
ensue, still more where the duel does not take place, the whole affair
will generally be overlooked; and challenges will not be completely
restrained. The oath you require from every person appointed or
elected to any office whatever, before he can enter upon its duties, is,
I believe, the best, if not the only measure which human wisdom can
devise. Its efficacy has been proved in Virginia, where a similar oath
is prescribed and has been rigidly exacted. The consequence is, that
duelling, formerly so common, is now scarcely known in this state,
and public opinion on the subject, is very much changed." This
high authority, supported, as it always is, by irrefragable argument for
the doctrines stamped with its approbation, has confirmed me in the
purpose of retaining in the code, which is submitted to you, the pro-
visions I have detailed. The same false sentiment of honour which
leads to a breach of the laws in committing this offence, renders its pun-
ishment more difficult. Witnesses avail themselves of the principle,
that they cannot be compelled to justify any thing that may inculpate
themselves; and, therefore, neither seconds, nor surgeons, nor any
others, who were voluntarily present, can be induced to testify;
so that facts notorious to the world, published in every newspaper,
which must be known and understood in order to exonerate the parties
from the foul crime of assassination, and which, therefore, they cannot
wish to keep secret, can rarely be proved before a court of justice.
In order to obviate this, in another part of the system it is provided,
that those who have served as seconds in a duel, or witnessed one as
surgeons, shall be forced to give testimony against the principals; and
that no person, so examined, shall be himself punishable for the offence.
This, together with the forfeiture of political and civil rights incurred
by the second, if he be convicted, will make it extremely difficult for
principals to obtain friends to attend them to the field; and the dishon-
ourable as well as dangerous suspicions that must attach to the survivor,
in a duel without witnesses, will generally prove an insurmountable
obstacle to such encounters.
The frequency of this offence in our state, the many valuable lives
which have been sacrificed to this false point of honour, the distress
with which it has overwhelmed whole families, and the particular fero-
city which of late years the practice has assumed-all justify the
attention of the legislature, and call for its special interference; not in
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1
the shape of severe penalties; not by denouncing punishments which
are never inflicted; but by preventive remedies; by mild laws, so
framed as to secure their execution, and by taking away, in most cases,
the pretext for private vengeance which was offered by the deficiencies
of public justice.
The twentieth title, "Of offences affecting individuals in their pro-
fession or trade," contains only a reference to other parts of the code,
in which offences, under that description, were necessarily noticed; it
being found impossible, without repetition, or anticipating on other
provisions, to arrange these under a separate head.
The condition of individuals, or that relation in which nature and
the institutions of society have placed them with respect to each other,
is the source of rights as well as of other enjoyments, which ought to
be protected by law. Our present laws afford this protection but im-
perfectly in some instances, and totally deny it in others.
The substi-
tution of one infant for another, at such a tender age as renders the ex-
change and the deceit practicable in the absence of the parent; the
production of a pretended child for the purpose of intercepting an in-
heritance, are not offences by our present law; yet the jurisprudence
of all nations gives us examples of these deceptions. The destruction
or falsification of registers of births, marriages and deaths, for the
purpose of injuring the condition of another, is also made punishable
by proper penalties. The common practice of exposing infants was
thought to be not improperly ranged under this head; for although it
is certainly an injury to the person, and as such might have been classed
in that division, yet the principal injury is that offered to his condition,
by causing him to lose the advantages of the relation in which he would
have been placed as the child of his parents.
The conditions arising from the important relation of husband and
wife, may be affected in the most cruel and injurious manner, by con-
tracting a second marriage during the existence of a former connexion
of the same kind. While the civil law pronounces the last marriage ·
void, the penal law cannot but add the sanction of a heavy punishment
to a fraudulent act, which disappoints the hopes of domestic happiness,
deprives the offspring of the first union of a parent's care, and devotes
those of the second to unmerited reproach, and all the other evils of
illegitimacy. Our present law is not silent on this last offence; but the
statute wants precision, and one of the exceptions would seem by its
language to give the means of evading its penalties without much diffi-
culty; for it declares, they shall not attach to any one whose husband or
wife shall have absented him or herself from the other for five years,
"the one of them (that is the husband or wife) not knowing the other to
be living within that time." So that, if the offending can only keep
the injured party in ignorance of his existence for five years, he may
contract a second marriage with impunity. Besides correcting this in-
accuracy, by restricting the exception to the innocent party, the nine-
teenth title contains many other articles to prevent the evasion of the
law, and to clear up doubts in a matter so important to the peace of
families and the good order of society.
We have now come to the consideration of a class more numerous and
more difficult to repress, than any in the catalogue of offences: those
affecting property; which word is here used precisely in the sense
given to it in the Book of Definitions; that is to say, that it conveys
THE CODE OF CRIMES AND PUNISHMENTS.
193
a compound idea, composed of that which is the subject of property
and the right to be exercised over it. In relation to its object, property
is either corporeal or incorporeal; and the right to be exercised over
it, is that of possessing and using it with respect to that which is cor-
poreal, and of enforcing and transferring it with respect to that which is
incorporeal. Consequently, the injuries treated of in this title, are acts
which interfere with the exercise of the right, which may be done
either by destroying or injuring the thing which is the object of pro-
perty, or by removing it from the possession of the owner, and ap-
propriating it. On this distinction is founded the division of these
offences, into malicious injuries to property, and fraudulent appropria-
tions of it.
1. In the former, the term malicious is intended to exclude negligent
or unintentional injuries, which are left, when the case requires it, to
the operation of the civil law.
The most common, as well as the most dangerous offence of this
nature, is that called arson by our present law, which imposes the
penalty of imprisonment for life on the burning of certain enumerated
buildings, and seven years at hard labour for the burning of any other
building. In the new code the severest punishment, for this offence, is
fourteen years' penitentiary imprisonment, and this is restricted to the
burning of a dwelling-house. A distinction between it, and other build-
ings not inhabited, being obviously proper. The destruction of other
buildings is made punishable by penalties proportioned to their value;
and the chapter contains provisions for the protection of all property
real or personal, against every species of malicious mischief. All the
terms used, are defined; the defect in our present law, which punishes.
no other injury of this kind to property but by burning, is supplied; and
two articles are added, which provide for other important omissions;
the one, the malicious destruction of title-deeds or evidences of property;
the other, the removal or destruction of landmarks.
A second chapter provides for a case analogous to those mentioned
in the one that precedes it. This is the invasion of property by house-
breaking; which is defined to be the entry into a house secretly, or by
force, or threats, or fraud, during the night, or entry by day and
concealment until night, with the intent of committing a crime. As
this is a distinct offence from that of appropriating property after the
house has been so entered, and is completed by the entry itself with
the intent to commit any species of crime, whether against person or
property, it occupies a kind of middle ground between malicious injury
to property and the next division, a fraudulent appropriation of it.
2. In this division, it is believed, that several valuable improvements
have been introduced, both in the arrangement and the manner. It is
arranged under six heads, and treated of in as many different sections.
The first is the fraudulent appropriation of personal property, which
had been delivered to the offender for another purpose.
This section,
by several precise articles, is calculated to avoid the uncertainty that
has prevailed with respect to constructive thefts, and by providing an
adequate punishment, which was totally wanting, for fraudulent breaches
of trust, to assign to each of these offences its appropriate penalty and
character,
The second section provides for a case that is now either always con-
founded with theft, or considered as not coming within the scope of
Ꮓ
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INTRODUCTORY REPORT TO
any penal law. I mean the fraudulent appropriation of property found.
Whatever, in strict morality, may be the character of such act, it is
clearly less in degree of guilt than theft; while, at the same time, the
injury to the owner, and the knowledge which the finder must have
that the property is not his, ought to rank it as an offence; though one
deserving a lighter punishment.
The
A third section relates to the violation of epistolary correspondence;
an act not punishable by our present law; but one which, whether we
consider the want of principle that must produce it, or the injury it is
calculated to do, ought to be repressed by the sanction of the law.
unauthorized opening and reading of a sealed letter; the publication of
such letter so improperly opened; the taking of a letter from another
without his consent, whether sealed or not, and the malicious publica-
tion thereof, are severally declared to be offences, and are made punish-
able by fine and imprisonment. The sanctity of private correspondence,
and of the confidential communications of friendship, have been too
often violated by party spirit or unprincipled treachery, in our day,
to require any argument to show why this section has been deemed
necessary.
The two next sections are of high importance in this general division
of offences; and the attention of the legislature is particularly invited.
to their provisions. They relate to two offences that are frequently
confounded, but which are here endeavoured to be distinguished by
definitions and rules which are minute, and it is hoped, will be found to
be intelligible and precise. These offences are, the obtaining of property
by false pretences, and theft, properly so called. The uncertainty of
the English law on this subject was lamented by lord Hale; and the
multiplicity of decisions, since his time, have rather rendered it more
obscure. That great lawyer says: "It is the mind which maketh the
taking of another's goods to be felony or a bare trespass only; but
because the variety of circumstances is so great, and the complication
thereof so mingled, that it is impossible to prescribe all the circum-
stances evidencing a felonious intent, or the contrary, the same must
be left to the due and attentive consideration of the judges and jury;
whence the best rule is, in doubtful matters, rather to incline to acquittal
than to conviction"(a). These doubtful matters alluded to in his
lordship's opinion might, it was thought, be much diminished in number,
and, of course, the conviction of guilt, and the acquittal of innocence.
rendered more certain, by adopting precise definitions, drawing practi-
cal deductions from them, and elucidating the whole by examples. It
has been my endeavour to do this; with what success can only be
determined, by a close examination of the text. Simple theft being
sufficiently described, and the danger of confounding it with other
fraudulent appropriations of property avoided; the next consideration
is the different aggravations of which it is susceptible. These form the
subjects of the three following sections.
The first of these is theft by effraction. This differs from the crime
known by the name of burglary, by our present law, in this, that it is
committed by breaking into a house by day, or by actually committing
the theft therein without breaking; whereas burglary can only be com-
mitted by a nocturnal effraction, and is complete by the intent of en-
(a) Hale's P. C., p. 509.
THE CODE OF CRIMES AND PUNISHMENTS.
195
tering, in which it more resembles the offence which has hereinbefore
been described as house-breaking. Stealing by an entry, without ef-
fraction, is punished by a mitigated penalty; but the crime and the
punishment are aggravated by the circumstances of actual violence to
any person who may resist the offender, or of preventing such resist-
ance by threats. There is an error of the press in placing in this sec-
tion the two last articles, respecting wrecked property. They proper-
ly belong to the section which treats of the fraudulent appropriation of
property found.
The next aggravation is that of privately stealing from the person,
which I have been induced to place in a separate grade of crime, prin-
cipally from the consideration that it is one which cannot well be com-
mitted, to any extent, without a dexterity acquired only by long prac-
tice and instruction; and also from the difficulty of guarding against
the depredations of its exercise.
The last aggravated theft, which it has been deemed proper to notice,
is robbery, which is theft committed by fraudulently taking the pro-
perty of another from his person, or in his presence, with his know-
ledge and against his will; whether it be taken by force, or delivered,
or suffered to be taken through fear of some illegal injury to person,
property, or reputation, that is threatened by the robber or his accom-
plice."
The description of these last two offences is so nearly similar to those
contained in the English law, as to require no elucidation; nor does any
scem necessary for that treated of in the concluding section, namely, re-
ceiving property knowing it to be stolen. But, although the English
law has been made the ground-work of these and other provisions, it is
not meant to allege that the rules of that jurisprudence have been strictly
followed, except where they have been found to coincide, as they for
the most part do, with those of justice.
The fourth chapter of this title defines an offence of no unfrequent
occurrence in England, and which, it was thought, should be guarded
against here; that of attempting to obtain property or other advantage
by such threats, either of injury to person, reputation or property, as
do not amount to robbery, according to the definition of that offence
contained in this code. The offence chiefly intended to be guarded
against by this chapter, is that of sending threatening messages or let-
ters, either to obtain property, to procure service, or merely to alarm.
The last chapter of this book contains a description of offences which
it was found impossible to bring within any one division of the code,
because it might affect as well the person, the reputation, the property,
or the profession or trade of individuals. To have treated conspiracy
as a separate offence, under each of these titles, would but have led to
a tiresome and useless repetition. It was, therefore, determined to an-
nex it to the whole as a concluding chapter. It is there defined as an
agreement, between two or more persons, to do any unlawful act, or any
of those acts designated in the law, which become by the combination,
injurious to others. Those are further explained to be, agreements to
commit offences; to accuse and prosecute falsely; to do certain enu-
merated injuries that are not offences when done by an individual.
The object of the first two of these combinations needs no explanation.
The offence is the act of combining to do them. If the completion of
the design were made necessary to constitute the offence, the evil would,
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INTRODUCTORY REPORT TO
in
many cases, be without remedy. The agreement between two or
more persons is an act which shows a settled design; and is clearly
distinguishable from an intent formed in the mind of an individual, not
only because of its being more susceptible of proof, but also from the
circumstance, that, if the original design of the individual could be
made to appear, a change of purpose might have taken place, of which
no evidence could be given; whereas, a combination between two or
more must have been communicated by some outward acts, and the re-
nunciation of the project evidenced in the same way; both being sus-
ceptible of proof. A combination too, although discovered before ex-
ecution, is injurious, because it excites alarm in the person who was
the object of it, and a sense of danger and suspicion in the whole con-
munity, which the most determined but secret intention of an individual
could never do. The danger is also increased by the character of the
injury to be effected by these combinations; they being, for the most
part, such as individual malignity alone could not accomplish. For
thesc reasons agreements to do certain acts, although never carried into
execution, are, in this and other parts of the code, made punishable as
offences.
The third head under which conspiracy is made an offence, although
the act agreed to be done would not be an offence, without such previ-
ous agreement, requires more elucidation. Its object is to prevent
combinations injurious to trade, by raising or depressing wages. This
subject is one that has engaged some attention lately in England, where
the laws, as they now stand, prohibit combinations among workmen for
raising their wages, but do not consider, as an offence, a similar agree-
ment among employers to lower them. To impose as few restraints as
possible upon the liberty of action, is undoubtedly a sound rule, in that
part of legislation which may operate upon political economy; and
therefore it might, on a superficial view, seem that any regulation, as to
the conduct of those concerned in manufactures and trade, in relation
to the price they may choose to put on their own labour, or give for
that of others, would be contrary to this rule. But the law interposes
here, not to impose a restriction, but to prevent one from being imposed
by an incompetent authority. Every labourer has a right to refuse his
services, unless the price which he appreciates them at, be that price
ever so extravagant, be paid. Every employer has the right to refuse
the same service, unless the price be reduced to the sum he thinks it
worth. But whenever an agreement takes place among the class of em-
ployers or labourers, for regulating these prices, then such an agreement
becomes, to the extent to which it can be enforced, a law operating
for the reduction or advance of wages, and a law made by parties in-
terested in the imposition of it; and, therefore, necessarily unjust; and,
if permitted, would be, in effect, a usurpation of the powers of legisla-
tion, and an unwise and oppressive exercise of them: for, although an
agreement be only a law to those who are parties to it, yet, when the
object of it is to affect the interest of others in a way in which they
would not be effected but for such agreement, it is in its operation, al-
though it may not be in its form, a law operating, though not binding,
upon those who are not parties to, but objects of the agreement. Sup-
pose a law instead of an agreement, and that a statute should render it
unlawful in any employer to give more than a certain price to his la-
bourers, the effect upon this last class would be precisely the same; yet
THE CODE OF CRIMES AND PUNISHMENTS.
197
such a law would be acknowledged to be one at variance with the prin-
ciples of free exertion, free use of capital, and free competition. The
agreement, therefore, is hostile to these principles, and ought not to be
permitted. For these reasons the code, in conformity with the English
law, imposes a penalty on any two or more persons conspiring to raise
the price of wages; but it adds to that provision, one which is wanting
in the English statute, imposing a similar penalty on a combination be-
tween employers to reduce the price of labour. Without this, the law
would be partial and unjust in its operation. Employers in any one
branch of manufacture, being, comparatively to the operators, few in
number, an agreement between them is more easily made; more readily
enforced among themselves; and, while their wealth enables them to
wait the effect of their combination, the poverty of those against whom
it is directed, obliges them soon to yield to the dictates of their em-
ployers, be they ever so oppressive. This inequality in the effects of
this offence, between these two classes of men upon whom it recipro-
cally operates, requires a correspondent difference in the punishment;
and it is, therefore, directed that imprisonment shall always be part of
the sentence against employers for a combination to lower the rate of
wages, for this cogent reason, that the highest limit which could be
given to the fine upon the labourer, would be no punishment to his
wealthy employer, who should be guilty of the same offence. It is also
provided, that an agreement to require a longer time to labour in the
day, or to decrease the number of working hours, without altering the
price, shall be considered as a combination to lower or raise the rate of
wages; and if the agreement be to inflict any injury on those who will
not become parties to it, the punishment is to be doubled. Other arti-
cles are contained in the text, calculated to explain, and carry into effect
those which have been commented on, and to guard against abuses in
enforcing them.
The rapid view I have thought it necessary to take of this important
branch of the work committed to me, is now finished. Some comments
and arguments that, perhaps, ought to have formed a part of it, have been
doubtless omitted. They will readily be supplied by the intelligence of
the body to whom it is submitted; but I much fear that the reproach of
having unreasonably trespassed on their attention, may have been more
justly incurred. Yet nothing has been advanced which was not thought
necessary to the elucidation of the great variety of provisions contained
in this code, and much was designedly left to be supplied by reflection.
INTRODUCTORY REPORT
TO
THE CODE OF PROCEDURE.
But
I HAVE now the honour to present the second of those codes which
your law has directed me to prepare. The legislature, which passed
that law, were aware that no system would be complete without a Code
of Procedure. Expense, delay or uncertainty, in applying the best
laws for the prohibition of offences, would render those laws useless or
oppressive. Therefore, this division has been considered of equal im-
portance with any of the others, but more extensive in its operation.
than either of them. The party committing the offence and the indi-
vidual injured, rarely the whole community, are the only persons im-
mediately affected by the commission and punishment of a crime.
in the measures prescribed for preventing or prosecuting them, every
citizen, however unconnected with the offence, may find himself in-
volved. As a judge, a magistrate, a civil or military officer, or even at
private citizen, every one is liable to become an active party in the task
of applying the law, after a breach of its provisions has taken place, in
preventing the commission of a crime, or in arresting the progress of
such as are continuous in their nature. The rules which direct us in
what manner, under what circumstances, and to what extent we may
use force to protect our own persons and property, or those of another,
against unlawful violence, also belong to this division of the law; so
that its provisions are more required for daily use than those of any
other part of the system; and it may, therefore, without impropriety,
be said, that a society, however excellent may be its laws for defining
crimes and affixing to them proper punishments, will, if the means of
carrying them into effect are expensive, dilatory and uncertain, be worse
governed than the community in which the Code of Crimes and Pun-
ishments is faulty, but where the rules for executing it, and for pre-
venting and arresting the progress of offences, are easy, cheap, expe-
ditious and just. More attention, therefore, has been paid to this
branch of the subject than the little importance, commonly attached
to it, would seem to warrant. None of the codes which have come
within my knowledge, either ancient or modern, except the French,
contain any separate body of laws directing the mode of procedure, either
for arrest, trial, punishment or prevention. Our laws, as we have seen,
are wofully defective in this particular; giving for acts, which, by some
laws, are declared to be offences, no rule whatever; and for the others,
200
INTRODUCTORY REPORT TO
The
referring us to the English common law, unmodified by statute. The
necessity, therefore, of a Code of Procedure was much more urgent
than that which existed for a Code of Crimes and Punishments.
system adopted in the prosecution of certain offences, by the legis-
lature, and in that of others by the courts, with the modifications
introduced by our statutes, is freed from many of the abuses and op-
pressions to which criminal prosecutions in England are liable :`a
public officer being appointed to prosecute, the individual who has suf
fered by the crime, is not, in addition to his loss, put to the expense of
bringing the offender to justice: jurors being taken by lot, no improper
influence can be exerted in the arrangement of the panel: the assistance
of counsel being secured in all cases, the defendant, no matter of what
he is accused, is enabled to make his full defence: and the intervention
of a grand jury being rendered necessary in every case of a grave ac-
cusation, the individual is not exposed to vexatious prosecutions that
can materially affect him. Standing mute is considered as a denial, not
a confession. Appeals of murder, trials by battle, and many other op-
pressive and absurd parts of the ancient common law, have never been
used in our state. Yet, with all these comparative advantages, our prac-
tice requires reform.
First, because the exemption from several of these and other incon-
veniences is, in many instances, not secured by law; and, in others, is
given to us by the construction of the court, contrary to law. In the
Introductory Report to the System of Penal Law, it has been shown,
that where the common law of England is prescribed as the law of our
procedure, it is spoken of without any of the amendments introduced by
the English statutes; and that in all acts, which are created offences
since 1805, no mode of procedure whatever has been provided.
Secondly, because, if the present mode of procedure were sanctioned
by law, it would require alterations and additions in the several par-
ticulars in which they have been introduced in the code, some of
which will be hereinafter pointed out, with the reasons for introducing
them.
Thirdly, because of the difficulty, expense and inconvenience, before
enlarged upon, of referring to foreign laws, written in a language
which a majority of our citizens do not understand.
Fourthly, because of the uncertainty inseparable from laws depending
for their authority upon judicial decisions.
Fifthly, as incident to the two last, because of the ease, convenience,
and indeed necessity, for all those who wish to perform their duty as
good citizens, of finding in one book, couched in language easily under-
stood, and arranged in a method making them easily accessible to all;
the rules necessary to direct them in all the cases in which self-defence,
the prevention of crime, the arrest of offenders, and their high duties as
magistrates or jurors.
The Code of Procedure now offered, sets out, as that of Crimes and
Punishments does, with an introductory chapter, containing a brief ex-
position of the objects which it is intended to effect. To this enuncia-
tion I have heard no objection stated, and its utility has been acknow-
ledged by many of those statesmen and jurists to whom the plan has
been submitted; it has, therefore, been retained.
The first of these objects, in order, as well as in importance, is the
THE CODE OF PROCedure.
201
prevention of intended offences. This may be effected by personal re-
sistance. The cases in which resistance is lawful, the degree to which
it may be carried, under what circumstances the interference of private
individuals is permitted, when the sanction of a magistrate is required,
his right to command the assistance of others, and when he may require.
the aid of military force, together with the formalities required for ef-
fecting these objects, are set forth in the first book.
According to our present jurisprudence, there is either no written
law for our direction on these points, which it is so much our interest,
as parties, magistrates or citizens, to know, or it is so dispersed in dif-
ferent books, so uncertain when it is found, and of such doubtful authori-
ty, as to render it unsafe for any one to trust to his own opinion, or
in truth, in many cases, to that of others. Yet the occasions which
call for the exercise of these rights and duties, are those of all others in
which there is least time to reflect, or opportunity to consult. For this
reason, every man ought to be provided with the means of acquiring so
much knowledge on these points as is necessary for daily use. With-
out it, he will neither know how to protect himself, or pay these du-
ties, which he may be urgently called on to perform in the protection
of others He must either act at his peril, submit to injuries which he
has a right to repel, or depend on the purchased opinions, and some-
times the forked counsel,' of men who disgrace an honourable pro-
fession.
All
The first dictates of common sense inform an individual that he has
a right to defend himself. The laws of society impose the obligation.
upon him of defending others, and of enforcing the execution of the
laws. Magistrates and executive officers are required by official duty
to prevent or arrest violence and depredation; and the military force
is told, that it must assist the civil power when legally called on.
this the general language of the law gives the citizen to understand.
But in our state it has never deigned to make such a record of its will
as may enable any one, desirous of obeying, to discover boundaries be-
tween legal acts and transgression in the performance of this duty. A
correct moral sense, a determination to injure no one may, with re-
spect to a man's own actions, render a knowledge of positive law less
necessary; but no prudence can foresee or prevent the necessity of self-
defence, and every man may be called on in some capacity to protect
others or to defend the peace of the state; and yet with every inclina-
tion to perform the duties of a good citizen on these occasions, he is con-
tinually arrested by the unavoidable doubts which must arise as to the
propriety of personal exertion in the particular case, or the extent to
which he may carry it. On the vital subject of calling in the military
to the aid of the civil powers, there is absolutely no provision; and there
is no power liable to a more dangerous abuse. Sometimes necessary for
the defence of the constitution and the enforcement of the laws, it is, at
the same time, the weapon best adapted for their subversion. The cir-
cumstances, therefore, in which its use is permitted, and the mode of its
exercise, ought to be impressed on the mind of every citizen to prevent
his refusing his aid when it is legally required on the one hand, and of
his being made the instrument of his own oppression on the other. It
is attempted, in the first book of the code now presented, to provide a
remedy for these evils.
The first title treats of the modes of preventing apprehended offences,
2 A
202
INTRODUCTORY REPORT TO
which it is declared may be either by resistance or by the intervention
of the officers of justice.
1:
The first chapter, by reference to the corresponding parts of the
Penal Code, lays down the rules by which the resistance of the party
injured, to offences affecting his person or property, is regulated. The
second chapter details the cases in which third persons may interfere,
without the sanction of the magistrate, and those in which such inter-
ference is not only a right, but a legal as well as a moral duty. In this
chapter are contained two provisions which require particular notice.
By the first an honorary reward is held out as an inducement for extra-
ordinary exertion in the prevention of crime, or in bringing an offender
to justice. This consists in a certificate of the act, recorded on the
minutes of the court, and transmitted to the appointing power to serve
as a recommendation for any office in which the qualities manifested by
it are required; to this, in such cases as the governor and judges think
worthy of the distinction, a piece of plate, of limited value, may be
added. A very high authority (a) tells us, that recompense, in a des-
potism, must, to accord with what he terms the principle of the govern-
ment, be of a pecuniary nature, and honorary in a monarchy but that in
a republic, founded on virtue, and which he seems to think ought to be
its own reward, it ought not to be allowed at all. He admits, that in
a monarchy the honour is and ought to be accompanied by fortune; but
why his doctrine should interdict to republics the agency of both honour
and profit, upon the human mind for the public good, it is not easy to
imagine. If a republic could be composed of men willing to devote.
their services to their country from a patriotic desire to see it prosper,
without the admixture of any other motive, rewards and distinction
would be unnecessary; but such pure attachment to the public good has
never been known to pervade any community; and the reward of public
esteem, and the distinction to which it leads, must ever be so closely
connected in the mind with the most elevated and disinterested patriot-
ism, as to make it extremely difficult to pronounce the latter motive to
have been that which predominated in any given exertion for the public
service. All that a wise legislator can be expected to do, is to present
such motives as will most effectually attain the end, which, in the case
under consideration, is extraordinary exertion for the due execution of
the laws. But we must take care that these means are not such as will
produce a greater evil than the breach of the laws which they are em-
ployed to enforce. Such I confess would be a corruption of the morals
of the people, or the introduction of any motive that would destroy the
fundamental principles of their government.
Let us test the system of rewards for extraordinary services by this
rule. There can be no greater incentive to voluntary action than the
hope of public applause, and when joined to pecuniary recompense
and undiminished by any consciousness of wrong, it comprises all,
perhaps, that, independent of religious motives, can most forcibly
act on the human mind; it is, therefore, well calculated to produce the
effect. For let it be remarked, that it is proposed solely to operate in
cases where the fears of punishment cannot be employed; no man can
justly incur a penalty for not doing more than the law requires; but
the public good may, at times, be essentially promoted by such acts.
(a) Montesquieu, Espris des Lois, l. 5, c. 18
THE CODE OF PROCEDURE.
203
The
Some motive, therefore, should be held out for their performance.
Some passion must be enlisted: it cannot, as we have seen, be fear :
it must then, as the only alternative, be hope-hope of some enjoy-
ment. Of what nature shall that enjoyment be? With consciousness
of well-doing, pure love of country unconnected with any personal
credit or other advantage, and with public esteem without any substan-
tial testimonials of its existence; legislation can have nothing to do.
The first st exit in every uncorrupted mind, whatever may be
the operation of the laws; the second is equally independent of ex-
ternal causes, and the third must in all societies, in a greater or less de-
gree, attend the performance of actions for the public good. But these
motives are not sufficiently general or strong to justify us in relying
solely on their operation. Laws must be made for men as they are,
not eh as an exalted theory of imagined perfection suppose them to
be; and although in every community some may be found capable of
doing extraordinary acts of public service, without even the hope of
reaping the reward of the esteem of those for whose benefit they were
performed; yet the bulk of mankind require something more.
consciousness of a good action, the knowledge of the benefit it has
conferred on the country, and even the persuasion that it is known and
silently approved, is not sufficient. Good policy, it is thought, as well
as justice, requires that this esteem should be expressed by some ex-
ternal mark; and that pecuniary recompense, the representative of so
many other enjoyments, should, in particular cases, be superadded as
a testimonial of gratitude. That the hope of these additional rewards.
would strengthen the motive to action there can be no doubt; and if
they do not counteract the more refined and disinterested impulses,
which have the same tendency, they may safely be employed; for
although laws cannot direct the operations of the mind, yet those laws
may promote or discourage them, by offering other co-operating or
counteracting inducements to produce or defeat the end proposed; and
the inquiry is, which of these effects will be produced by the employ-
ment of the rewards proposed in this part of the code? Those held
out, for danger incurred, diligence used, or skill displayed in any ex-
traordinary degree, in preventing an offence, or bringing in offenders
to stice, are addressed exclusively to love of distinction, and of that
distinction only which is founded on public gratitude and esteem.
While this passion can be directed to the support of the government,
the due execution of the laws and the defence of private right, it sup-
ports that which is assumed to be the principle of republican govern-
ments it produces the same effect, excites to the same acts, and cannot
be distingushed in its operation from the most exalted public virtue.
But the rewards held out by the code, for extraordinary services, are
precisely of this nature: a certificate of the fact, recorded, published,
and transmitted to the appointing power, to serve as an authentic re-
commendation for offices requiring the exercise of the qualities display-
ed.
In ordinary cases, this is given by the court; in those which evince
higher merit, the concurrence of the governor, entitles the party to
the additional testimonial of a goblet or vase of little pecuniary intrinsic
value; but the inscription, in which the meritorious act is recorded, plac-
ed continually before his eyes and those of his family, raises him in his
own esteem, increases the reverence of his domestic circle, and gives
him a limited local celebrity, which not only adds to his own happiness,
204
INTRODUCTORY REPORT TO
but, within a certain sphere, operates as an incentive to promote that
of the public.
Honours conferred for brilliant achievements in war, or eminent
services in council, may in a republic be said, perhaps with some pro-
priety, to be liable to objection; not because they are wrong in them-
selves, but because, by exciting the admiration of the people to a high
degree and attaching it to one man, they give him an undue influence
that may be sometimes used to the destruction of liberty But no such
consequence can be apprehended from the unpretending limited popu-
larity and distinction given by the means pointed out by the code. On
the contrary, beneficial political effects may be expected by bringing
within the reach of those in the humblest station those testimonials of
eminent merit, and by associating public favour in their minds with
the execution of the laws. He who has risked his life in an unequal
encounter with ruffians, either to protect another from their vio-
lence, or to secure them for the purpose of punishment, every one will
allow deserves public esteem; but it can neither be permanent nor
extensive, and, of course, will lose much of its value, if it is confined
to the narrow circle of those who happen to have witnessed, or to
have been benefited by its exertion. It is soon forgotten, it loses most
of its effect as an example, and it is buried in the same oblivion with
the every-day transactions which have nothing to impress them on the
memory,
Paulum sepultæ distat inertiæ
Celata virtus.
Let the little hero of the hamlet have his celebrity for supporting
the laws, and you will have fewer great heroes who seek it by breaking
them; and let it be remembered, that the recorded certificate and the
engraved goblet are not given to reward the act, but to keep it in
memory. The only reward is the public consideration, which will not
be measured by the worth of these testimonials, but by the merit and
utility of the service rendered.
The provisions of the next succeeding articles are founded on other
principles, and I confess are liable to stronger objections; they give
a pecuniary reward to him who denounces the commission of certain
crimes.
1. In order to bring offenders to justice, two distinct duties are to be
performed. The public officer must prosecute; but he cannot do this
until the private individual, who has suffered by the offence, or knows
that it has been committed, shall accuse. In most cases we may safely
rely for the performance of this last mentioned duty upon the feeling
of resentment for the injury, or upon a sense of public justice. There
are cases, however, in which neither of these motives exist, or are not
sufficiently strong to produce the desired effect, and in which, to secure
the execution of the laws, other inducements must be brought to bear.
Punishments and rewards are those only, which the legislator has at
his disposal. The first, it was thought, ought not on this occasion to
be used, for the general reason, that the denunciation of penalties ought
not to be multiplied without evident necessity; and also, because it
was thought proper to make a sensible distinction between the omiss-
ion to give notice of an intended crime, so as to prevent its commission
(which is made punishable by the code) and the failure to denounce a
crime already committed. As the punishment for the first offence was
THE CODE OF PROCEDURE.
205
necessarily placed very low on the scale, the other must either have
been rated so low as scarcely to deserve the name of punishment, or
else so high as to run the risk of confounding two acts somewhat similar
in their nature, but very different in their injurious effects.
There was
moreover another reason for not employing the sanction of punishment
on this occasion. It is a wise maxim in legislation, never to enact
laws that the prejudices of the people or other circumstances will not
allow you to enforce. Oppressive laws have in most countries, and
from the remotest antiquity, caused those by whom they were governed
to array themselves against their execution; and whenever any one of
their own number lent his voluntary aid in enforcing them, to consider
him as a betrayer of their common interest. For which reason a degree
of infamy became attached to the name and office of an informer, which
has extended itself in a greater or less degree to those who voluntarily
offer evidence of the infraction of the laws, even in countries where
they are neither oppressive nor unjust. To impose a penalty, therefore,
on those who, guilty of no crime themselves, should shrink from taking
upon themselves the task of accusers, would seem unjust even if the
penalty be enforced, which, in the common course of things, would
rarely happen. First, because it is scarcely ever susceptible of proof.
If I have witnessed the commission of the crime and do not inform,
who is to accuse me? Not the offender, surely. Not the injured
party for, if he be alive and desire the prosecution, he is the proper
accuser. Not another witness; for he is in the same predicament with
myself if he omit to denounce it, and if he do not, then his information
dispenses with the necessity for mine. Besides, while the prejudice
against the character of an informer exists, it will attach with tenfold
force to him who should assume that office, in order to punish another
for refusing to incur the odium that he has voluntarily undertaken.
2. Secondly, if that difficulty be surmounted and a prosecutor be found,
jurors will not easily be persuaded to convict; and when they do,
public prejudice will operate upon the pardoning power to interfere.
Again-suppose the person to whom I may have confessed that I was
the unwilling witness of a crime of which I refused to become the
delator, should himself omit to become my accuser, the law will not be
executed. Will you enact penalty for him also, and another for the
one who omits to accuse him, and so in endless succession? No, you
must stop somewhere, and rely on a sense of duty or some other motive
to procure the necessary information. This once granted, it is evident.
that this resting place is at the first link in the chain, and that you will
more probably obtain information against the original offender than
against those who have not denounced him. The fear of punishment,
then, does not seem to be the best means we can employ on this occa-
sion. There remains the hope of reward. We have seen that the
prejudice against informers originated in the injustice and oppressive
nature of the laws, which forced upon the people the conviction that
their interest and that of those by whom they were governed, were
totally distinct. But when the laws are evidently made for the benefit
of the people, much more when they themselves make the laws, this
prejudice ought not to exist; yet such is the force of habits, of thinking,
and the association of ideas to particular terms, that although the reason
in a great measure ceases to exist, although the reform of our laws will
take it entirely away, yet the effect remains, and we can only hope to
206
INTRODUCTORY REPORT TO
:
see it entirely destroyed by the operation of time and of wise legisla-
tion it is in vain to attempt to eradicate it by penalties. The first
step is the enactment of good laws, and convincing the people, by
making them intelligible as well as good, that they are so. This will
lead them, by degrees, to the conviction that there can be no dishonour
attached to any legal act by which the public good is promoted. A
worthy citizen will then consider it no more disgrace to inform or
prosecute any infringement of the laws by public offences, than he now
does to complain of injury to his own person or property. No ministry
of the law will then be deemed degrading; and from the bailiff who
arrests, to the judge who sentences the offender, the warden who
superintends his labour, and the divine who conducts him to reforma-
tion, all will, in different degrees, be considered as joint labourers in
the same great and honourable work. If your laws for regulating
arrests were just and well understood, the petty oppression of the
constable would cease, and his office would become respectable. Where
the interior of prisons in the United States have been thrown open to
public view, and they have ceased to become the scenes of vice, filth,
and oppression, the keepers have risen to the rank in society to which
their important duties entitle them. Men of respectability and talents
are employed as wardens of your penitentiaries-without repugnance
they become the executioners of the sentence of your courts against
criminals, because the laws which condemn them are just-because the
severity of the punishment does not enlist public feeling against those
who inflict it-and because the good sense of the people has discovered
that the laws are made for their own benefit, and ought to be executed.
He need not be very old to remember the period when the place of
jailor was considered so odious that very rarely would a man esteemed
in society accept it; yet now the office of keeper of a state prison is
sought for by honourable men as an honourable office. What has
produced this change? The question is not a difficult one, and the
answer has been anticipated.
We come then to the conclusion, pointed out by reason, and con-
firmed by experience: that the ministers employed in the execution of
just and mild laws, well understood by an intelligent people, will in no
grade of their rank be considered as dishonourable; and as a just conse-
quence, that the duty of aiding them will not be so considered. The
immediate question then recurs,-will the acceptance of a reward for
such aid attach any odium to the performance of the duty? The officer re-
ceives a salary or fees for the performance of his permanent functions,
why should not the individual receive a compensation for his occasional
service? In both cases there is a sacrifice of private convenience to
produce a public good: why should it not, in both cases, be compen-
sated? Public prejudice is against it: this cannot be denied; but the
same prejudice formerly existed against the functions of the regular
officer, yet we have seen this giving way gradually to the force of truth
and the increase of knowledge. Why may not the same effect be ex-
pected in this analogous case? With this hope the text of the law con-
tains the reason for enacting it; it exposes the folly and danger of the
prejudice that would counteract it; and protects those who are independ-
ent enough to do the duty and receive the reward, by a penalty against
any defamatory reproaches against them, which the remains of a ground-
less prejudice might suggest. The reward is pecuniary only; it is mo-
THE CODE of procedure.
207
derate, and it is confined to certain offences. To have made it honorary,
would have been to destroy the very nature of that recompense, by
making it too common. The amount is sufficient in most cases to in-
demnify for the loss of time and for the trouble attending the service,
and not so great as to offer any temptation for false accusations. It is
given only for the denunciation of great offences, in the punishment of
which the public have a peculiar interest; and it is extended to breaches
of the laws against duelling and forgery, because, in the one instance,
the prejudices of false honour call for some additional motive to induce
persons to give information; and in the other, an attention to private.
interest might induce the person who was endeavouring to be defrauded,
to make compromises that would defeat the ends of justice, unless it were
made the interest of some other person to prosecute. No offence that
is only made punishable on the complaint of the party injured, comes
within this provision. An accomplice cannot claim the reward, because
it would be in vain to offer it to him without adding to it the promise
of impunity; nor can the party injured, because, in many cases, his
testimony is necessary for conviction, and it was not deemed proper to
place him in a situation that must necessarily detract from his credit.
The third and fourth chapters of this title prescribe the manner in
which the interference of the magistrate may be required to prevent
offences, or to restore to the proprietor articles which may have been
illegally and fraudulently taken from his possession. In the first branch
(the prosecution of an intended offence by requiring security) the regu-
lations of the English law, as far as they could with certainty be dis-
covered, have been followed; and where its rules were uncertain or de-
fective, provisions have been added in accordance with the spirit of that
law, (by which, on this, as on other occasions, I repeat it, I have been
guided when I found it to accord with the principles established in the
report that has met your approbation). To obtain the required security,
the party must declare, upon oath, that he fears some offence will be
committed against his person or property by some person whom he must
designate; he must add the reasons which cause his apprehension; and
if the cause assigned shall, in the opinion of the magistrate, justify the
fear, he shall direct the person complained of to be brought before him.
The fear entertained must be that the offence will be committed by
violence, because against every other injury to person cr property every
one is supposed to be able to protect himself by proper care.
The duty
of the magistrate to hear the party accused, and examine his proof, is
pointed out; the security is set forth, and the cases in which courts may
exact it on conviction. A provision, entirely new, is introduced, by
which the magistrate, before whom complaint is made of an intended
offence, when the proof does not show that the complainant had just
ground of fear, is directed, before he discharges the accused, to explain
to him the nature of the offence which was endeavoured to be guarded
against, and the punishment annexed to it by law, and to admonish him
that if he should commit the same, he will incur the highest penalty
that can be inflicted by law for such offence. Another article directs
the like admonition, and prescribes the same consequences in cases of
applications setting forth a well founded apprehension of an intended
defamation, by speech, by writing, or by printing. The constitution
of our state forbids any previous restraint, even when such intent shall
be proved; but as it makes the party liable for the abuse of the liberty
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it gives, it was thought that the evil might, in some measure, be pre-
vented by the fear of the increased punishment, if the offence should be
committed after the admonition.
By the search for property taken by theft or fraud, some of the most
important rights of the citizen are at least endangered, if not actually
invaded. Too many precautions, therefore, cannot be taken to prevent
the mischiefs that might arise from its abuse; and if the observance of
the forms prescribed should sometimes involve the loss of property, the
evil will be less than the vexation which a less restrained power to in-
vade the domicil of the citizen would inevitably occasion. In framing
this chapter the utmost care, therefore, has been taken to guide the
judge in the exercise of the discretion which must necessarily direct him
in this important function of his office-to point out precisely the cases
in which alone he can perform it-to state what evidence he should re-
quire in each of those several cases to direct, with the most minute
precision, the material parts of the order he shall issue, and to provide.
that such order shall confer all the powers necessary for the attainment
of the ends proposed, and also every limitation to prevent abuse and
secure the innocent from injury, and even those who may afterwards be
found guilty from vexation. The duties of the magistrate, of the parties,
the witnesses, and particularly of the officers who execute the writ, are
separately, and it is hoped clearly and accurately detailed; and the
penalties for any vexatious complaint, or abuse of authority, or denial of
justice, are denounced.
Some of these provisions are new; and those which are not so, appear for
the first time in their natural order and connexion with each other; and it is
believed, that if they should receive the legislative sanction, much petty
oppression, extortion and fraud, will be prevented, of which the igno-
rant and indigent may otherwise become the victims. This class, de-
pressed by their circumstances, perhaps by their vices or indolent
habits, incapable from their want of instruction, of asserting their rights,
are those who most need the protection of the laws, and in most countries
they are those who receive the least.
A second title of this book is devoted to the means of putting an end
to such offences as are permanent or continuous in their nature. The
first six chapters of which relate to the means of putting a stop to the
several offences discussed in the Code of Crimes and Punishments, as
those against public tranquillity, public health and safety, the enjoy-
ment of public and common property, morals and decency, and repu-
tation. These consist chiefly of references to the correspondent parts
of that code, which, on these heads, direct the interference of the
magistrate, or regulate the exertion of personal defence. The se-
venth book is highly important. Under the title of suppressing of-
fences against personal liberty, it contains the regulations for granting
and enforcing the writ of habeas corpus. No exposition of this chapter
is necessary; because it has already received the sanction of your prede-
cessors; and because the subject is fully discussed in the Report on the
plan of a Penal Code, which received the approbation of the legis-
lature in 1822. Detached parts of this book have been enacted into
a law, incorporated in the Code of Civil Procedure; but I submit to
the legislature the propriety of repealing so much of that code as
relates to this subject, which surely is no part of civil process, and suf-
fering the whole, as now presented and formerly approved, to occupy
its place in the present code. This title closes by a chapter directing
THE CODE OF PROCEDURE.
209
the manner in which permanent offences against property are to be sup-
pressed and possession restored to the owners of that which has been
seized as stolen or fraudulently obtained.
A short but very important title, consisting of two chapters, contains
the regulations for calling out and employing the military, in aid of the
civil power. The first chapter designates the cases in which that power
may be called for, and the mode of making the application. The second
regulates the manner in which the military force may be employed.
By military force is intended the militia of the state and the code
provides, that it can only be employed by order of the governor,
or, when he is too distant to act, by that of the militia-general com-
manding the district; and the order can only be given on the applica-
tion, in writing, of three magistrates, one of whom must be a judge,
supported by an affidavit of two inhabitants stating that a riot or in-
surrection has taken place in the parish in which they reside, and that
it cannot be quelled by the force of the ordinary civil authority. The
application must state the circumstances of the case and the number of
men that will probably be required to restore order. On this applica-
tion, the governor or commanding officer is authorized to direct the pro-
per militia force to march to the place indicated, under the command
of an officer of requisite rank, and put himself under the direction of
the magistrates who made the requisition.
In all riots or insurrections, the immediate, sometimes the ultimate
object is violence to some obnoxious person, or the plunder or destruction
of property. To protect these, without the useless sacrifice of human
life, is the object of the laws on this subject; therefore, all the provisions
of this chapter are intended, if possible, to stop the violence by the fear
of an armed force, without having recourse to its dreadful execution.
The militia are only to be employed where the ordinary civil power
has been tried and found insufficient. It is, when practicable, to be
stationed between the rioters and the object of their intended violence;
to act strictly on the defensive, and under the direction of the magis-
trate. When the use of weapons becomes necessary, to use only those,
such as the bayonet and sword, which may be directed solely against
the assailants, without endangering the lives of others; leaving the more
dangerous and uncontrollable effect of fire-arms (which may injure the
innocent as well as the guilty) for the last resort. In no case can the
armed force be brought up, before the magistrate has displayed a white
flag, and ordered the rioters to disperse; and, unless to repel an attack
endangering life, no order is to be given for the use of offensive arms,
until half an hour has elapsed after the order to disperse, without its
being obeyed. The remarks on this chapter cannot be closed without.
observing the essential difference between the nature of the armed force,
the use of which is contemplated by the code, and that employed on
similar occasions in England and other countries in Europe. There it
is composed of men entirely under the control of the executive branch.
of the government, upon which they depend entirely for subsistence.
Here, except in the circumstances of their being organized and armed,
they differ in nothing from the power which is at the daily call of the civil
officer. Without arms or military array, they are the common posse
comitatus, as it is called, or civil power of the country; the same ties
of property, of family, of love of country and of liberty, to make them
effective instruments for the suppression of disorder, and the most unfit,
2 B
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INTRODUCTORY REPORT TO
even when disciplined and armed, that could be chosen to promote any
scheme of usurpation. The people can apprehend no danger to their
liberties from such a force, even when it is actively employed against
themselves—when deceived by the factious, agitated by party, or in-
dignant against real or imagined injury, they are led to oppose the
operation of the laws. Yet with all these safeguards, the legislator
would be unfaithful to his trust who should neglect other precautions
against the necessary evil of employing the weapons of war in the work
of peace. According to the erroneous ideas of the ancient jurispru-
dence, the sword of justice always was unsheathed, always brandished.
In our more correct conceptions, it is never placed in her hands, but
in the last extreme of necessity.
The review of that part of the code which relates to preventive pro-
cedure, is now finished. It is a meagre title in the English, and as
sterile in our law, for we have added nothing by statute to that part of
the common law which we have adopted; and in the laws of other
nations, with which, however, I am but very imperfectly acquainted, I
find little or nothing on this important branch of jurisprudence. Pains
and penalties! Every where penalties! Every contrivance to punish-
scarcely a provision to prevent or repress! If I did not think it, in some
measure, disrespectful to the honourable body I address, to express a
doubt, that every part of the plan they have directed to be laid before
them would receive equal attention, I should venture to request a scru-
pulous examination of the title we have just reviewed, as one of the
most vital importance. I would entreat them to enlarge it by such
enactments as their superior wisdom should suggest, for the great, the
sacred object of preventing offences, rather than punishing them; and I
dare, even at the risk of being thought importunate, and of tiring them
by repeating the same argument, earnestly pray them to consider deeply
the necessity of early education-general education-religious, moral
and literary education, as the great lever for raising the people above
the temptation of crime, and the only means by which offences may be
prevented by the moral sense, rather than repressed by the operation.
of law; and in connexion with this important branch of our subject, I
refer to the different establishments provided for by the Code of Prison
Discipline, under the heads of School for Reform, House of Detention,
and House of Refuge; and to the reasons which will be urged in the
Introductory Report to that Code for this establishment.
Having considered the means of preventing inchoate offences, and
arresting the course of such as are in operation, we now approach that
which may, perhaps, with a stricter propriety, be considered as a Code.
of Criminal Procedure, that is to say, the mode of conducting prose-
cutions for offences already consummated. This is the subject of the
second book of the Code. The first title of this book contains the
law of Arrest and Bail, two very important subjects; hitherto left, for
the most part, without positive legislation to guide the officer, the ma-
gistrate and the citizen, in the daily calls upon them to act in the pro-
secution of alleged offences, or to direct the accused in the assertion of
his rights. By this part of the code the omission is endeavoured to
be supplied. The first chapter contains definitions and general prin-
ciples necessary for the full understanding of the provisions which follow,
and of the reasons on which they are enacted. The nature of a com-
plaint for an alleged offence, is explained, and its effects pointed out.
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211
What proof of such complaint is necessary to give it the force of a
legal accusation, and to justify an order of arrest, is stated. The necess-
ity of such arrest, to ensure the appearance of the witness on the trial,
the necessity of the commitment further to secure that end, and the
condition of the pledge contained in the contract of bail, is fully ex-
plained and elucidated. These follow in regular order and in successive
chapters, each one appropriated to a distinct head. The first specifies
the mode of making the complaint and accusation, and of granting the
order of arrest. This last mentioned subject, the order of arrest, is
the subject of a separate section. To deprive a citizen of liberty, before
he is convicted of any offence, can only be justified by the necessity
of securing his appearance to attend the trial and suffer the penalty, if
the charge be well founded. But it cannot be justified at all in the fol-
lowing cases: first, where the punishment annexed to the offence is so
light as to destroy the presumption that the accused would avoid it by
flight in other words, where the inconvenience attending flight, would
be greater than the evil of the punishment; secondly, when the evi-
dence is not such as to justify a belief that the accused is guilty; nor,
lastly, where the accused will give such a pledge for his appearance
as will render it more probable that he will remain, and either show his
innocence or suffer the penalty of his guilt, than that he will forfeit
the pledge he has given. The chapter is drawn in accordance with
these views of the subject. In case of misdemeanor, where there is
no possibility that the party will incur the certain evil of flight, to
avoid the comparatively light suffering of the penalty directed by law,
there is no arrest, unless it be incurred by wilful disobedience to a
citation commanding the party to appear. In accusations of a graver
nature, the evidence in support of them must be on oath; it must
be positive that the offence has been committed, and produce belief
in the mind of the magistrate that the person designated has com-
mitted it, before the order for his arrest can be granted. The com-
plaint, and the evidence in support of it, must be reduced to writing,
signed and sworn to by the witnesses. The order must plainly
designate the offence charged, that the defendant may be prepared
on his appearance before the magistrate with his defence, and it must
be delivered to an officer of justice who is to make the arrest. In
order, as far as possible, to avoid oppression, to ensure the due exe-
cution of the law, to protect the officer against the effects of mistake
in the performance of his duty, and to point out to private citizens that
which may be required of them when called on to assist him, as well
as to designate to the accused the bounds between legal resistance and
the submission required by law; all these points are fully explained
under distinct heads in this chapter. Great care has been taken in
framing the law on these heads, so as to make it clear to the most com-
mon understanding; because, in the whole course of procedure, there
is no circumstance productive of so many vexatious proceedings and
serious and frequently fatal effects, as that of arrests. Officers of justice,
often uneducated and overbearing men, either do not know, or design-
edly exceed, the bounds of their authority. The accused sometimes
submits to illegal acts, at others, resists those to which he ought to
submit. The citizen, when legally called on to enforce the execution
of the law, refuses to obey, or makes himself liable to prosecution for
aiding in an illegal arrest; and it is believed, that of all the cases of
murder, manslaughter, violent assault and false imprisonment, reported
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:
in the books, no inconsiderable proportion will be found to have arisen
from ignorance of rights and duties in granting warrants, in making
arrests, or resisting them-ignorance inevitable, from the state of our
laws; for where (it is asked on this as it has been on former occasions),
where is the necessary information to be obtained? The written law
is silent; the oracles who pronounce that which is unwritten, only
speak when the case has already happened; and the unfortunate citizen,
called on to act or suffer at a moment's warning, is forced to do it at
his own risk; for those to whom he has confided the care of fram-
ing rules for his government, have hitherto obstinately refused, or
negligently omitted to dictate them. It is time that this duty should
be done it is more than time that this reproach should be taken
away from our legislation. You declare, that every man who kills an
officer in the legal discharge of his duty, is guilty of murder, and shall
suffer death. You say, that resistance to an unlawful arrest is justifia-
ble; and you cruelly and wantonly refuse to explain what is a lawful
and which an unlawful arrest. You refer to the contradictory and con-
fused decisions of courts in a foreign country for information on this
all-important point. Do you understand those laws? Are they clear?
-deign then to clothe them in the words of legislative authority:
publish them to your constituents. Are the cases contradictory?
tell us which of them is the law. Are they confused and uncertain?
-explain them. Do you not understand them yourselves?-then how
should we your constituents be guided by them, in matters too on which
depend life or death? If the rules now offered are not approved,
frame others. When obedience is exacted, under such a sanction, the
least the people can require is to be clearly and explicitly told what it is
they are to obey. I feel that I am repeating here ideas that have been
more than once expressed, and that I am urging former arguments with a
zeal that may be deemed indiscreet, and, I hope, is unnecessary; but I
have a great, a holy duty to perform, and I dare not leave any part of it
undone, from the fear of giving offence, or the hope of conciliating
favour, much less that of gaining applause. The solemn truth must be
told, must be repeated, until it is felt. "LEGISLATORS ARE IN EFFECT
THE MURDERERS OF THOSE WHO PERISH BY THEIR WILFUL NEGLECT
""
TO PROVIDE GOOD, OR TO REPEAL BAD LAWS. This responsibility
cannot be thrown off, or even divided, however numerous the body
upon whom it devolves it attaches to every individual whose vote is
counted either against the reform or for postponing it to other matters.
of minor consideration: and the reflection finds its place very natu-
rally at the close of a review of the chapter relating to arrests, a sub-
ject in which so many require the aid of the law to guide them, by
clear and precise rules, in order to avoid heavy penalties; in which so
few receive that aid at all, and none in the manner in which it ought
to be afforded.
The arrest being made, the next proceeding is to bring the accused
before the magistrate, that he may proceed to examine and discharge,
commit, remand for further examination, or deliver to bail. Rules
are laid down in the fourth chapter for each of these alternative duties.
The first is the examination. Our present law prescribes, that the
magistrate is to reduce to writing the answers which the accused may
voluntarily make to such questions as may be put to him without any
threat or promise, and the construction put upon this has, I believe,
generally been that no inference against the prisoner is to be made
THE CODE OF PROCEDURE.
213
from his refusal to answer such question; and practice, which with us
so frequently usurps the authority of law, has established it as a rule
frequently followed, to declare this explicitly to the prisoner, thereby
inviting him to silence, and, of course, depriving the prosecution of
the advantage to be derived from his communications. The course
directed by the code is somewhat different, and requires some discussion.
The great object of all criminal procedure is the conviction of the
guilty-but of the guilty only. Every precaution which the wisest
legislation can suggest, should be employed to prevent its falling on
the innocent. Yet such is the imperfection of all human institutions,
that, after these precautions are taken, it must happen that innocence is
sometimes mistaken for guilt, and incurs its punishment. To require,
therefore, that a code of procedure should be so framed as to prevent
the possibility of this error, would be absurd; and the only mode of
affording perfect security from conviction to the innocent, would be to
extend impunity to the guilty. All that the best legislation on this
subject can do, is to take every precaution consistent with the main
object (the conviction of guilt), to secure innocence from being con-
founded with it before condemnation, and to correct any errors which
may afterwards be discovered. Therefore, it is no good objection to
any particular part of criminal procedure to say, that it may involve the
innocent. That we have seen is, in some cases, inevitable under the
best systems. Every question, therefore, of this nature, must be one
which presents a choice between two measures, each of which has
some portion of evil attached to it, and it must consequently always be
one of sound discretion to take that which has the least.
In the examination of the accused, the advantage is, that if guilty,
he will frequently betray himself by his own story. The truth would
be a confession. He must have recourse, therefore, to falsehood; but,
as error is infinite, he will state some things which can be easily dis-
proved by circumstances or by other witnesses, and the investigation of
which would lead to his conviction. Suppose him, on the other hand,
to be innocent: his statements will contain the truth, because he has
no need of concealment, and the circumstances and witnesses which
would detect his falsehood, in the one case, will evince his truth in the
other. If the magistrate, who examines, in this preparatory stage,
were the tribunal which finally tries, there would be another advantage
in permitting the interrogation of the accused, his looks, his manner
of answering, his hesitation or promptitude, even his silence, would
have their effect in determining on his innocence or guilt. But we are
now speaking of the examination before the committing magistrate,
who has seldom any agency in the final trial; and even when the ex-
amination is made before the judge who afterwards presides at such
trial, the jury, not the judge, are to determine the question of guilt;
therefore, no impression that can be made in favour of the prisoner or
against him, from his manner and appearance on his examination, can
have any avail on the trial. From this circumstance arises the first
item in the detail of disadvantages attending the subjecting the prisoner
to examination. That his answers, not being heard by those who are
to decide on his innocence or guilt, can only be communicated to them by
being reduced to writing. The difficulty of doing this, so as to express
precisely the ideas intended to be conveyed, cannot be appreciated but
by professional men, who must have witnessed how often inaccuracy of
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INTRODUCTORY REPORT TO
expression in the speaker and carelessness or misapprehension in the
scribe, concur in producing the most dangerous errors, even without
supposing any intent to mislead or falsify. An unrestrained right of
interrogating is also very apt to produce insidious and catching ques-
tions. Instead of a cool and impartial attempt to extract the truth, the
examination becomes a contest, in which the pride and ingenuity of
the magistrate are arrayed against the caution or evasions of the accused,
and every construction will be given to his answers that may fix upon
him the imputation of guilt. After weighing these and other arguments
on both sides of this important question, I came to this conclusion, that
it would be unwise to abandon the advantage to be derived from an
examination of the accused; but at the same time, that justice required.
us to reduce to their lowest term the two inseparable evils attached to
this mode of proceeding, and I thought that this might be effected by
restricting the magistrate to a prescribed form of interrogatory, so
drawn that no innocent person could be entrapped by answering them;
while, at the same time, evasions or untrue answers might frequently
lead to the detection of guilt; and to avoid inaccuracies in recording
the answers, the interrogatories are pointed only to such simple cir-
cumstances as can be detailed with the greatest simplicity of language,
and they are not considered as complete until they have been signed by
the party and corrected by him, so as to express exactly the idea he
meant to convey; if we add to this that he has the assistance of counsel,
and has heard what the witnesses against him have deposed, it will be
found that the accused is in no danger of being circumvented or intim-
idated to his prejudice in the preparatory examination. He is first
apprized that although he may refuse to answer the interrogatories that
are about to be put to him, or answer them in any way he may think
fit, yet a false answer, or his refusal to give any, must operate against
him on the trial. This consequence is inevitable, and under our pre-
sent practice, where he is expressly told that he is at perfect liberty to
answer or not, as he pleases, which implies that no injury to him can
result from his silence, the same result is produced; and the prisoner
is invited to silence by being assured that it will do him no injury,
when in the nature of things the jury cannot but infer guilt from false
representations, or from silence, without any motive but that of con-
cealing the truth; either of which circumstances, when they occur,
are given in evidence according to our present practice. It was, there-
fore, thought, that justice to the prisoner as well as to the public, re-
quired that full notice should be given of the deductions that would be
drawn from his silence or evasions.
It cannot be denied, however, that cases may be supposed in which
even the guiltless may be induced, from a strange combination of cir-
cumstances, to remain silent, or to give a false colouring to the transac-
tion which has involved them in suspicion. But this reflection did not
prevent my adopting the mode of interrogation which I recommend:
First; because the existence of such circumstances must be of very
doubtful occurrence; and if they should happen, the cases in which
they occur being, according to other parts of the proposed system,
within the reach of remission and compensation, ought not to form an
objection to a part of procedure otherwise advantageous. Secondly,
because the same objection lies to our present practice, and must attach
to any other that may be adopted, there being nothing that can secure
THE CODE OF PROCEDURE.
215
the accused, if he is tried at all, from the unfavourable impression that
his silence or falsehood may make upon his judges if he is in any way
interrogated, or from the effects of circumstances which render guilt
probable, if they cannot be explained. With this explanation of the
reasons on which it is founded, the attention of the legislature is re-
quested to the fourth chapter, and it is hoped that it will be found to
contain every provision necessary to protect the prisoner from any ef
fects injurious to his safety, arising from surprise, intimidation, or false
hopes, if he be innocent; and at the same time secure to the prosecu-
tion the advantage of that evidence which a consciousness of guilt will
generally furnish in his answers to the interrogatories. A prejudice,
but it appears to me a groundless one, and certainly very favourable to
the escape of the guilty, exists against procuring testimony from the
judicial examination of the party accused before a magistrate; and yet,
without scruple, we admit testimony of his informal and private con-
fessions to individuals, as if he would be more apt to inculpate himself
without cause when put on his guard by the admonition of the judge,
and a knowledge of the consequences, than he would be in a loose con-
versation which he must imagine would never be repeated, and as if
the record of what he has said, corrected and signed by himself after
due deliberation and with the assistance of counsel, were not as high
evidence of the fact, as the declaration of a casual witness who may pur-
posely misrepresent the terms of the confession, or unintentionally give
it a false colouring. It cannot be denied that an innocent man of very
weak nerves may sometimes, in his confusion, give contradictory or false
statements that may endanger his safety, or do acts that cannot be ac-
counted for but on a supposition of guilt. So may an innocent man
incur the danger of conviction from an untoward combination of cir-
cumstances which he cannot explain, or from the misapprehension, or
direct perjury of witnesses. Yet the risk must be incurred in both
:
cases, unless we abandon altogether, in the last instance, the prosecution
for crimes; and in the first, all advantage to be drawn, in any shape,
from the best source, the acts and confessions of the party accused and
all that can be required in a good system of procedure, is to put these
in such a form as will insure authenticity, and guard against error, in-
timidation, or the effects of false hopes. It is believed this has been
done. The prisoner is allowed the assistance of counsel; he may ex-
amine the depositions and question the witnesses against him, before he
is called on to answer the interrogatories that are to be propounded to
him the form of these is prescribed by law. He is informed that he
cannot be forced to answer them, but he is admonished that silence or
falsehood must be a circumstance that will operate against him. His
answers, if he give any, are reduced to writing by the magistrate; they
are submitted to his perusal and correction, and he signs them with
such additions and alterations as he deems proper; and if after all any
error should have occurred, means are afforded, on the trial, to correct
it by explanation, and by the examination of witnesses, before an im-
partial jury.
:
The next step, after examination, is to discharge, remand, bail, or
commit the prisoner. The first is the duty of the magistrate, when
the evidence adduced by the prosecution is not such as leaves on the
mind a belief that the crime has been committed, or that the prisoner
has been guilty of it. This being only a preparatory proceeding, the
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INTRODUCTORY REPORT TO
:
magistrate is directed not to require such proof as would justify a con-
viction his duty, in this respect, is precisely pointed out. If there be
positive evidence, directly charging the prisoner with the commission.
of the offence, although he may produce contradictory proof, the ma-
gistrate cannot discharge, the task of weighing the exculpatory evi-
dence being reserved for the jury on the trial. When the evidence is
circumstantial only, and does not bring the mind to a belief of guilt, the
defendant must be discharged; but in this case, it is a belief only, not
a firm conviction of guilt that is required, by which is meant, that the
rule laid down for guiding the conscience of a juror on the trial must
be reversed as respects that of the magistrate on the question of dis-
charging him. In order to convict, the juror must have no doubt of
the prisoner's guilt; to discharge him, the magistrate must have none.
of his innocence. The result of an examination may be such as to
show that other proof, within the reach of the magistrate, may be re-
quired; in which case the prisoner is remanded, or sent back to the
custody of the officer by whom he was arrested, or to the prison in
which he was confined; and at a proper and designated period he is
again brought up, and the examination proceeds. If the magistrate be
not convinced of the defendant's innocence, he must either commit him
to prison or take bail for his appearance, and the performance of this
duty is one in which the highest confidence is necessarily placed in the
discretion of the magistrate. The nature of the contract of bail is too
well known to need any explanation. Its theory was to place the ac-
cused in the watchful (a) care of persons who have confidence in him,
and who are interested in preventing his escape by the fear of losing
the penalty of the bond; and it was also thought that the confidence re-
posed in him by his sureties was such proof of good character as form-
ed a presumption that he was not guilty; but experience, in many cases,
shakes the ground-work of this theory. The bail may always be in-
demnified when the defendant is wealthy and conscious of guilt; and
the confidence is generally reposed more in his means than his char-
acter. Hence, it is apparent, that where bail is a matter of right, the
defendant can always change the penalty of the law into expatriation,
and a pecuniary fine to the amount of the bond. Therefore the law,
while it allows bail in cases of doubt or in offences where these conse-
quences would be a sufficient punishment, ought in those of a higher
nature, and where the proof is strong, to secure the appearance of the
party by other means. Unfortunately the framers of our constitution
have restricted legislation on this subject within very narrow bounds,
and on one construction have taken it away altogether, if we should, as
I cannot but hope we shall, abolish the punishment of death. The con-
stitution declares, that "all prisoners shall be bailable by sufficient se-
curities, except for capital offences where the proof is evident or the
presumption great." On the construction I have adopted, the magis-
trate may refuse bail where the "proof is evident or the presumption
strong" in offences which, in the time of making the constitution,
were capitally punished: these were murder, rape, exciting insurrec-
tion among slaves, and stabbing or shooting with intent to murder.
But that in all other cases he is bound to take sufficient bail. Nor can
(a) The French word surveillance expresses the idea I mean to convey, better than even
the periphrase I am forced to use, for want of a correspondent word in our language.
THE CODE OF PROCEDURE.
217
any legislative provision, except perhaps that of making the offence ca-
pital, enlarge the constitutional restriction. I express myself hesitating-
ly, because I am not sure what the courts would say on this question;
whether the constitution intended such cases as were then capital, or
those which the legislature might afterwards declare to be such, or
whether when the offence ceases to be punished by death, the constitu-
tional rule with regard to bail remains unchanged. This restriction
on the powers of the legislature I consider unfortunate. A high-
way robber arrested with his pistol at the traveller's breast-a forger
taken in the act of passing or making his false bills-every other offen-
der, be his guilt ever so atrocious, or the proof of it ever so apparent,
must be let out on bail, and, if he has secured the means of indemnify-
ing his sureties, may change the punishment directed by law, for a fine
and expatriation or concealment. Constitutionally, therefore, the magis-
trate, could be invested by the code with the discretionary power to bail
or not to bail in but few cases, and on one construction, as we have seen,
(capital punishment being abolished) in none. There, is however, no
such restraint upon his discretion as to the amount of the security ; and
this being the only remedy for the evil, great pains have been taken in
the framing of rules for the guidance of the magistrate in the perform-
ance of this important duty. If there be any occasion in which it is
proper for the legislator to declare what he expects from the judgment,
as well as what he commands from the obedience, of a functionary of
the law, it is the one now under consideration; because the magistrates,
who are to perform the duty, are commonly unused by previous habit
or professional education to the consideration of the questions to which
it gives rise; and because of the high importance of the due exercise of
this discretion, as well to the public as to the individuals more imme-
diately concerned. There are those, however, who consider that the
law should do nothing but command, and that its commands should al-
ways be sanctioned by some penalty for disobedience. The arguments
which enforce this doctrine seem to be founded on the idea that there
is some paramount power, even superior to that of a constitutional law,
which limits legislative power by certain rules of form as well as of
moral duty in the exercise of its functions. Utility prescribes the last,
but from what source is the first derived? We feel that there is an ob-
ligation not to enjoin the performance of immoral acts, and we are at
no loss to discover the source of this duty. But when we are told,
you are to prescribe nothing that you cannot or do not enforce by a
penalty, we must seek in vain for some good reason for the maxim.
The lawgiver cannot foresee the circumstances of every case, and if he
could foresee, he could not describe them; he must, therefore, give
general rules, and trust, within certain limits, to the discretion of the
judge, the power to modify and adapt them to suit particular cases;
that is to say, he must delegate that part of his duty which he cannot
perform himself; and in making this transfer, it would seem not only
right but highly useful to give the rules and lay down the principles
according to which he desires it to be exercised. This cannot be done
by positive command, because it is to operate on the mind and direct
the judgment, not the action; and as this is a delegation of discretion-
ary power, it would be absurd to annex a penalty to an honest, although
improper exercise of it, provided the limits of the discretion were, not
exceeded. To illustrate this reasoning by an example drawn from the
2 C
218
INTRODUCTORY REPORT TO
part of the code which is in question-the magistrate, in admitting to
bail, is directed, in general terms, so to apportion the amount as not to
suffer the wealthy offender to escape by the payment of a pecuniary
penalty, nor to render the privilege useless to the poor; and he is told
that this power is, in its exercise, one of the most delicate and import-
ant functions of his office, and he is apprized that his sound discretion
is to direct it. It is clear that here there can be neither positive com-
mand, nor penalty for its breach; if there were, it would no longer be
discretion. Yet can it reasonably be said, that legislation derogates
from its dignity, or performs a superfluous task when it points out
to the magistrate the objects he ought to have in view, and the princi-
ples by which he is to be guided, in order to attain it? But the whole
duty is not left to the discretion of the magistrate. Whatever could be
foreseen, and provided for, by that of the law, is reduced to positive pre-
cept, and its breach incurs the penalty attached to disobedience. Thus,
where the punishment is fine, the bail must exceed the maximum of the
penalty; where it is simple imprisonment, one rule is fixed; where
the imprisonment is in the penitentiary, another; other rules are laid
down for apportionment in other particular cases; and the discretion
of the judge is reduced in this, as it has been the object to do in every
part of this code, to the strictest limits, within which it can be exercis-
ed consistently with justice. Some of these rules and restrictions are
new; others are conformable to present practice; but all are for the first
time reduced to the form of statutory legislation.
The bail being completed, the prisoner is suffered to remain at large
until the trial; but provision is made, that for the security of the bail,
they may, at any time, exonerate themselves by his surrender, and the
particular mode of doing this is prescribed.
If sufficient bail be not offered, or if the case be one in which the
magistrate rightfully refuses to receive it, the prisoner must be com-
mitted to prison, to abide the event of his trial if he be not before that
time bailed or discharged by the judge of a superior tribunal, or habeas
corpus. The order for commitment is directed to be in writing; its
form and essential parts are prescribed, as well as the mode in which
it is to be executed; and all the means that experience or reflection
could suggest, have been adopted to prevent the discharge of the pris-
oner, which so frequently happens from formal defects in the warrant,
while every requisite security against abuse and oppression have been
carefully provided. After commitment, the prisoner may be bailed or
discharged, if the nature of his case permit it. But the inferior magis-
trate has no other agency in this proceeding than to furnish all the
evidence of that which was had before him to the judge before whom
the prisoner may be brought, on the return of the writ of habeas cor-
pus; to the chapter on which subject the legislature is referred for a
minute detail of the duties and rights of all parties and agents, from the
judge who decides, to the prisoner whose case is before him; and with
this ends the provisions necessary for securing the appearance of the
defendant at the trial, by which his guilt or innocence is to be ascertain-
ed, and at the judgment, by which it is to be proclaimed. In framing
this part of the system, it has never been forgotten, that the guilty
were to be brought to punishment with as little inconvenience as possi-
ble to the innocent; and that no presumption or other evidence of
crime could, before trial and conviction, justify any thing more than
THE CODE OF
219
OF PROCEDURE.
1
+
necessary restraint. With this view a reverent eye has constantly been
kept on those admirable provisions for the security of personal liberty
which are to be found in the laws of England, which deserve the grati-
tude as well as the admiration of the world. Institutions which are
every day extending their influence over the happiness of mankind,
and which will prove a more lasting and honourable monument of the
wisdom, justice and greatness of the nation from whose jurisprudence
they are drawn, than any which their splendid victories, their power,
their wealth, or even their science, could erect. Of these institutions
the writ of habeas corpus is that which applies to this part of our sub-
ject. The idea of this remedy is to be found in the Roman law; but
there, as well as in the common law of England, it was ineffectual, un-
til the great statute, of that name, gave it the essential features to which
it owes all its utility. These features have been rendered more definite,
new provisions and penalties have been added,and, I think, it may now be
asserted with truth, that individual liberty can suffer no restraint, which,
under this law, will not find an easy, prompt, and unexpensive remedy.
In reviewing the duties of the examining magistrate, among them
should have been stated that of taking an obligation from witnesses,
under a penalty, to secure their appearance at the trial, and of commit-
ting to prison such as refuse to enter into that obligation. Analogous
to this is a proceeding which, although an invasion of personal liberty,
is practised in most countries, and, I think, justified by the same rea-
soning which shows the right of taking private property, or coercing
personal service, for the public safety. When one who is a necessary
witness, in a prosecution for an offence punishable by imprisonment
for life, is not a householder, and consequently wants one principal
tie to prevent his departure, and has no friends or connexions who will
become bound for his appearance, he may be detained in custody until
the trial; but in this, and in the Code of Prison Discipline, it is specially
provided, that he be properly and comfortably supported at the public
expense; that he suffer no degrading or contaminating associations
while detained; that he be allowed every indulgence, as to occupation,
amusement and society, which the good order of the house (for the
place of his detention is not characterized as a prison) will allow, and
that when discharged, full compensation be made for the loss he has
incurred. The duties of the examining magistrate end, with transmit-
ting to the proper officer of the court having cognizance of the case, all
the proceedings which have been had before him, including the origin-
al examination as well of the party as of the witnesses; and here opens
a new course of proceeding, contained in the second title of this book.
It treats of the proceedings subsequent to the commitment or bailing of
the prisoner. The first chapter details the manner in which the ap-
pearance, as well of the party as the witnesses, is to be enforced, which,
as it differs little, except it is hoped in precision and certainty, from
the mode now in use, needs only a reference to the chapter.
The second contains some regulations which it was thought would
introduce order in the arrangement of the different cases preparatory
to the indictment or information. Among them is one which obliges
the prosecuting officer to designate, before the meeting of the grand
jury, on a copy of the calendar furnished to him for that purpose, all
such cases of misdemeanor as he may choose to prosecute by informa-
tion
; and the papers, in relation to these cases, are not sent to the
220
INTRODUCTORY REPORT TO
grand jury. This is done, as well to avoid any interference between
the two accusing powers, as to ensure, on the part of the prosecuting
attorney, the performance of his duties. For this officer, after having
designated those cases in which he will proceed without the interven-
tion of the grand jury, is bound to file his information before the end
of the term; and the court being made acquainted with them, as the
cases which are before him, he cannot, if so inclined, favour any one
by delay in the prosecution, or throw off the reproach of neglect upon
the grand jury. And that body being obliged, as their exclusive duty,
to inquire into all cases of crime, and all those of misdemeanor not
selected by the public prosecutor, it follows that every accusation must
be disposed of in one or the other mode.
The third chapter is an important one. It relates to the organization
and duties of the grand jury. This institution is a favourite one in
England and in the United States. But although I consider its advan-
tages outweigh the objections to which it is liable, and have, therefore,
preserved for it a place in the system, yet I cannot but suspect that it
owes much of its popularity to its name, and to the association which
connects it with that invaluable blessing to a free country, the trial by
jury. Some part of its utility, too, is traditional only. In the party
questions, which at different times have divided the people of England,
and which very rarely ended without enlisting the judiciary power on
that side which was espoused by the crown, it was sometimes a protec-
tion against the combination of royal and judicial oppression, and would
have been more frequently so if there had been any means of securing
an impartial selection of its members. It is not my intention to pre-
sent a history of this institution, or a detail of its advantages or incon-
veniences, in its origin, progress, or present state, in the country from
which we have inherited it. It will be sufficient to offer the objections
to its establishment here, which have occurred to me, and the reasons
in its favour, which I have thought sufficient to countervail them.
With such an admirable contrivance for the security of innocence against
unjust prosecutions as the trial by jury, where unanimity is required
for conviction, any intermediate examination between that made by the
committing magistrate and the final trial, would seem an obstruction to
the course of justice, of which the necessity, or even the convenience,
is not very apparent. The secrecy, too, of that examination and the
precautions taken to prevent the slightest responsibility resting on any
one of those by whom it is made, it might be argued, give a chance for
favouritism, or undue influence, to interpose in favour of those whose
guilt would be apparent on a public trial; while, on the other hand, it
might be said that witnesses, according to the usual practice, being
heard only to charge the defendant, and heard in secret, he is depriv-
ed of the advantage secured to him before the magistrate of showing
his innocence by countervailing proof; and thus, in all cases originat-
ing by complaint to the grand jury, he would be subject to commit-
ment and trial, on the evidence of circumstances which he might have
fully explained had the examination been publicly had before a magis-
trate. To this it may be added, that grand juries are very rarely, if
ever, composed of men having such a knowledge of the law as will
enable them to determine what evidence ought to be admitted, to what
credit it is entitled, or whether the facts it discloses amount to an of-
fence; and that this ignorance of their duties, or an inattention, which
THE CODE OF PROCEDURE.
221
is worse, frequently causes them to mistake or disregard the duties of
their office, and assume the cognizance of matters with which they have
no concern; sometimes censuring the conduct of political opponents;
sometimes lending their influence to promote party views. These
objections are weighty, and some of them not ill-founded. But after
the fullest consideration, I thought that those to which satisfactory
answers could not be given, might be obviated by alterations, which
would make none in the general outline of the institution; and,
therefore, for the following reasons I adopted it with the modifications
contained in the code.
1. First, because it participates largely in that prominent characteristic
which distinguishes the trial by jury (a), of spreading general informa-
tion, and a particular acquaintance with the practical operation of the
constitution and laws; of creating an attachment to the principles on
which they are founded, and, by the periodical performance of an im-
portant function, promoting the happiness of the individual by a sense
of self-importance, and that of the public, by a constant vigilance over
its peace.
It might, if necessary, easily be shown that each of these
effects will be produced by the frequent exercise of the duties of a grand
juror; and all of them are objects of the highest consequence in legisla-
tion. For, in a government created for the common good of all its
citizens, that organization of any department is certainly to be prefer-
red, which, while it is equally well calculated with any other, for the
performance of the duties for which it is particularly intended, also
opens new sources for individual happiness, diffuses knowledge, fosters
an attachment to true principles, and adds stability to the government
of which it is a part. It has appeared to me, that a want of attention to
such considerations is a common fault in the legislation of our country.
We shape our laws to fit the principal end which is proposed, without
sufficiently examining whether the same object could be obtained by
means that produce other collateral effects of equal or perhaps of greater
importance, and avoid dangers which, in our eagerness to attain some
doubtful good by a straight-forward, off-hand legislation, have totally
escaped our attention. Thus, to raise a revenue for some useful purpose,
we license gambling-houses; to promote education, and provide for the
building of churches, we establish lotteries; to avoid the expense of
erecting a penitentiary, we incur that of supporting our convicts in
idleness, and put some of our citizens to death, that we may impress on
the minds of others the great truth that killing is unlawful. We do this,
without sufficiently inquiring whether the requisite revenue might not
be obtained by some other and better means than giving the sanction of
law to the worst of vices; whether a purer source could not be found,
from which to draw the means of supporting religious and scientific
education, than one that corrupts morals, encourages idleness, and leads
the poorer classes to poverty and vice; whether the crimes which are
fostered in the vicious association of confinement, without labour, are
not infinitely more expensive to the community than the most costly
house of labour; and whether shedding man's blood is the most effectual
way of showing that it ought not to be shed.
2. Independently of this collateral, but highly important advantage, at-
tached to the institution of grand juries, it was adopted, secondly, because
(a) See Report on the Plan of a Penal Code.
222
INTRODUCTORY REPORT TO
!
it was already established, and it has been my uniform practice to alter
no part of the system but such as could be clearly shown to be defective
or inconsistent with other parts of the plan. Whether the present is
of this character must depend upon an examination of the objections
which have been stated. These are in substance, that the intervention
of a second accusing power, between the commitment by the magistrate
and the trial, is a useless piece of machinery in penal law; that from its
particular organization it is cumbrous, and from its secrecy dangerous;
that it may, without responsibility, protect guilt and vex innocence; and
that the ignorance of its members frequently leads them into erroneous
ideas of their power, which creates confusion in the administration of
justice.
The error of the first objection lies in supposing that the commit-
ment of the magistrate, in all cases, contains such an exposition of
the circumstances and nature of the offence as would enable the party
to prepare for his defence, by knowing exactly, not only with what
crime he was charged, but also when, where, and in what manner he is
accused of having committed it. But this is far from being the case.
If the ministry of the grand jury be dispensed with, that of some other
body of men, or of some officer, must be substituted for the performance
of this duty. If it be vested in a known officer, or a permanent body,
he or they being previously known, will be subject to the approaches of
influence in all its seducing forms, for the purposes of favour or oppress-
ion. Whereas the grand jury, selected by judges totally unconnected
in any other manner with the proceeding, cut of a very limited number,
taken by lot immediately before the session of the court, are out of the
reach of any attempt to seduce or intimidate them. If, to obviate this, and
at the same time the next objection, that the grand jury is inconveniently
great, it should be said, draw your accusing judges also by lot, or let them
be appointed by the executive immediately before they enter on their
duties, but let the number be less: it is answered, this expedient gives
us still a grand jury. If appointed by the executive, you do not take
away the danger of an undue influence; you only change the person to
whom it may be addressed. If you take them by lot, in the manner
proposed by the code, the only question is, whether the substitution of
any smaller number for that now required will be attended with any
advantage sufficiently great to justify the change. It is thought not.
If no great reduction be made, the difference will scarcely be percepti-
ble in the mode of proceeding. If the number be few, some advantage
may be gained in celerity; but a greater lost in the want of information,
and in the freer scope given to the influence of favour or animosity
among a few. The object of this institution being, not only to make ac-
cusations of such infractions of the law as have been prosecuted before
the examining magistrate, but the jurors being individually bound to
make inquisition into all such as they have reason to think have been
committed in the district for which they are assembled, it follows, that
a reasonable suspicion, entertained by one of the members and com-
municated with the circumstances on which it is founded to his fellows,
will be sufficient to ground an inquiry; for which purpose they are vested
with powers to send for and examine witnesses. This object will
obviously be better attained by a numerous than a small body.
The objection drawn from the secrecy of the proceedings before the
grand jury, is one that comes in a more imposing shape than any other, in
THE CODE OF PROCEDURE.
223
a country where publicity in every department is justly considered as the
greatest security for good conduct in those who direct them. Yet there
are reasons why I should hesitate to remove the veil that has been
drawn over the proceedings of the grand jury room. To appreciate
these reasons, we must consider the constitution of this body and the
nature of their duties. The members are not appointed or chosen to
perform functions of an office, but designated, as we have seen, by lot
to perform a service, an onerous one, which they have not courted,
and to which they have not been called by an appointment which they
might accept or refuse. It would seem unjust, therefore, to expose an
individual, thus performing an involuntary duty, to the odium or suspi-
cion inseparably attached to it, for any erroneous but honest expression
of his opinion; and against the prosecution for corrupt or other illegal
conduct, the oath of secrecy taken by his fellows is no protection. It must
be remembered, too, that the honest and useful prejudice against secret
informers, although it may have contributed to give force to this objec-
tion, has in reality no application to the proceedings before a grand jury.
When any member of this body prefers an accusation, he becomes a
witness, his deposition is taken, and, with that of every other witness, is
handed into court. The secrecy is not in the accusation, or in the name
of the witness who makes it, but it is confined to the opinion which
each juror delivers as to the weight which the evidence ought to have.
To make this public, would be to deter the timid from the discharge of
an important duty, by exposing him to the animosity of those who
might be affected by it, and could be attended with no advantage what-
ever. If the office were an elective one, it would be important for the
people to know how the officer had performed his duties; if it were one
held by appointment, the same information would be useful to the
executive or appointing power; but in the case before us, responsibility,
except for offences, does not and need not exist; and where there is no
responsibility, publicity can be of little use.
The want of general knowledge, and especially an ignorance of the
law in the greatest number of jurors, is also alleged as a serious objec-
tion against their fitness to determine whether a citizen shall be exposed
to the risk and vexation of a public trial, or a knave shall be snatched
from the conviction that would probably be the consequence of his
trial; and it must be confessed, that if this objection be at all well
founded, it is particularly so when applied to a system like the present,
in which the jurors are taken by lot. But we must consider that the
principal duty of a member of this body is the determination of mat-
ters of fact, which requires nothing more than the exercise of a plain
sound understanding, a knowledge of the different concerns in commón
life, an independent spirit, firmness and integrity, acquirements as
probably to be met with in any twenty men, who might be selected
from three times that number presented by lot, as in any particular
class of society. Ignorance of the law must certainly be expected.
As our laws now stand, this objection might be made with nearly the
same number, chosen with the greatest care from the whole community
among those who are liable to this duty. It is obviated, in a great
degree, by several provisions: the duties of grand jurors are specially
pointed out; and that part of the code which contains them, is direct-
ed to be read to them and a copy sent to their chamber: the written
law, upon every one of the offences on which they are to decide, is also
224
INTRODUCTORY REPORT TO,
laid before them: the public prosecutor is directed to give them his
advice on all the cases which he knows from the calendar will claim
their attention, and on all other 'points, whenever it shall be required;
and any further doubts they may entertain, are directed to be cleared
up by the court. With these precautions to avoid error, it seems al-
most impossible that any of importance should be incurred; and the
necessity of resorting to these sources for information, will every day
be diminished by the knowledge of the laws which these measures
cannot but diffuse among the people.
One other inconvenience remains to be mentioned. The abuse en-
couraged by the courts, and readily fallen into by grand juries,—that
of assuming the power of discussing and deciding on extra-judicial and
political questions. This has an unhappy effect, particularly in a popu-
lar government, where party spirit is so apt to introduce itself into
every assembly, to mix in every deliberation, break the ties of friend-
ship, relax those of kindred, embitter social intercourse, madden pub-
lic discussion, and unless restrained, impress its character on legislation
and pervert the administration of the laws. The greatest of these
evils would be, that it should insinuate itself into the hall of justice;
and, as far as positive interdiction can go, this entrance through the
chamber of the grand jury has been closed. The grand jury, thus or-
ganized, is exclusively the accusing power in all cases of crime, and in
those of misdemeanor concurrently with the public prosecutor, of
whom there is one appointed for each court of criminal jurisdiction,
The intervention of this body has been erroneously called a double
trial, and it has been stigmatized as an injustice that the accused has not
the privilege of being heard before them. Although the answer to this
objection has, in some measure, been anticipated, yet it may be neces-
sary to add, that, until the indictment be found, the accusation is not
complete, consequently there is nothing to answer, and nothing to try;
and when it is found, there would be an absurdity, as well as glaring
injustice, in permitting the truth of the accusation to be tried by the
same body that had just preferred it.
It is hoped and believed, that in the chapters describing the mode of
proceeding in the grand jury, and enjoining the duties of the court and
the several officers of justice in relation to them, many things will be
found which may prove useful in establishing and giving certainty to
our present practice, together with some innovations that may be deemed
improvements on the system, although they are not thought of sufficient
importance to be here discussed. The assent of twelve jurors is made
necessary for finding an indictment, but that of a majority of those pre-
sent is sufficient to decide incidental questions. The act of accusation
being found, must be delivered into the hands of the judge in open
court, who, if the defendant be in custody or on bail, shall order it to
be filed; but if he be at large, in order to avoid his receiving notice
and escaping, the judge shall issue a warrant for his apprehension, and
keep the indictment in his hands until the arrest be made. Freedom
from arrest, during the term of his attendance, and from action or pro-
secution for any thing said in the performance of his duty, excepting
perjury in a deposition made to his fellows, is secured to each grand
juror.
A chapter is devoted to the form and substance of indictments and
informations-an important division; for, to the want of precision in our
THE CODE OF PROCEDURe.
225
law on this subject, may be traced the numerous instances in which
men evidently guilty have escaped punishment. In a system which
admits the humane maxim, that it is better an hundred guilty should
escape than one innocent man be punished, it becomes an imperative
duty to avoid all those doubts which make the administration of crimi-
nal justice a lottery, with so many chances in favour of guilt. Every
man, who has attended our courts, must be convinced of the deleterious
effects of this uncertainty, and must have seen the reliance that is placed
upon it by culprits on their trials. The first question asked of their
counsel, especially by old offenders, is, whether he can find no flaw in
the indictment; and there can be no doubt of its effect in multiplying
crimes, by adding one more to the many hopes of impunity. Every
endeavour, therefore, has been made for giving to the provisions of
this chapter such a character as will make it secure to the accused every
information necessary for his defence, but deprive him of all hopes of
cscaping, in any other manner than by a verdict, which shall declare him
innocent. Among the first, is the direction for stating clearly in the act
of accusation, whether indictment or information, all the circumstances
which enter essentially into the description of the offence charged,
the place where it was committed, and, in private offences, the names
of those to whose property, person, or reputation, the injury was
offered. To render mistakes less frequent, and secure uniformity in
this important part of procedure, forms are provided in a subsequent part
of the work, applicable to each offence; but to avoid delay in the few
cases in which these forms may have been carelessly departed from, those
directions which may be considered as substantial are designated and
distinguished from those which are formal only; the latter being amend-
able of course, and the former, except in a single instance, not operating
so as to discharge the accused, if objected to either before or after trial;
that single exception being the one that the indictment charges, a fact
which does not amount to an offence. In every other case the indict-
ment is amendable by being referred again to the grand jury, where
necessary—and the cases in which it is so, are pointed out-giving the
party always time to answer the new allegations. A proper idea of all
these provisions can only be formed by a perusal of the chapters which
contain them. One alteration, however, demands particular notice.
In no cases are exceptions to form more frequent, in none do they more
effectually defeat the ends of justice, than in prosecutions for forgery,
passing counterfeit bills, and other offences in relation to instruments
in writing; if an erroneous denomination be given to the instrument, by
calling it an order when it is really a bill of exchange or a promissory
note, or if the tenor of the writing be not exactly set forth in the indict-
ment(a), the proceedings are set aside, and under some circumstance the
(a) To any one who has attended to the proccedings of criminal courts, it would be un-
necessary to cite instances of the allegation in the text. One of rather a ludicrous cast lately
occurred in England. In an indictment for forgery, a stroke of the pen, which occurred in the
instrument, had not been copied in the indictment. The prisoner being convicted, his coun-
sel moved in arrest of judgment, and assigned the omission of this stroke for cause. The
paper and the indictment were handed up to the bench, and the judge, not being able with
the naked eye to discover any difference, had recourse to a glass, and by the aid of a strong
magnifier discovered something which he said was either a tick (a word of which I do not pro-
fess to know the meaning) or a letter, which he would not or could not determine, but sub-
2 D
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་
defendant, although his guilt has been ascertained by a verdict, is dis-
charged. These consequences are avoided by a simple provision, which
has been alluded to in the Introductory Report to the Code of Crimes
and Punishments. In all cases, to avoid the delay arising from objections
to form, whether made in the shape of motions to quash the indictment,
to set aside the proceedings, or to arrest the judgment, a copy of the
indictment is directed to be furnished to the defendant, and, at a con-
venient time before the trial, he is brought into court and informed, that
if the indictment contains any defect of form (and what are deemed to
be such are explained to him) he must specify them by a day desig-
nated; but if he fail to make them then, he will for ever be precluded.
In the mean time he has counsel assigned to him, if he have employed
none. After the period for deliberation has elapsed, he is again
called on for his exceptions; if he make any, and they are such as are
designated in the code to be those of form merely, they are amended
immediately by the public prosecutor; if of substance, the indictment is
sent back to the grand jury. But if no exception be then made, none
will afterwards be heard, except the radical defect that the facts charged
do not amount to an offence. In prosecutions for offences, founded on
writings, the indictment is not required to give any denomination to
the instrument; it is not called a note, a bill, or bond, but simply an
"instrument in writing, of which a copy is annexed." By this
means one fruitful source of error, uncertainty and delay is avoided.
Another, to which, as has been said, this species of prosecution is par-
ticularly liable, is avoided by the proceeding just detailed the indict-
ment and the copy of the instrument being served on the defendant,
when he is brought into court the original is submitted to his inspec-
tion and that of his counsel; time is given to compare it with the copy
furnished; and, in addition to the notice given in other cases, he is ap-
prised that if he means to make any exception to the correctness of the
copy furnished, he must do it in the time limited by the rule before
trial. If he make any such exception, and it is found to be well taken,
the copy is immediately amended; and it is not until all difficulties of
form are thus got rid of, that the defendant is called on to answer to the
merits. This is done formally in open court, and the answer can only
be a confession or denial of the charge; excepting only, the plea that
the defendant has before been acquitted or convicted for the same of-
fence. A refusal to answer, or any indirect or evasive answer, is con-
sidered and recorded as a denial of the charge. As but one mode of trial,
consistently with this code, will be known to our law, the useless question,
which implies an option, is no longer to be put. The trial by jury is es-
tablished as the only one that can be resorted to. The reasons for this are
so obvious and are so fully stated in the Report on the Plan of a Penal
Code, made to your predecessors in 1822(a), that nothing need be added
to show the importance of this institution, as well in a political as a ju-
dicial point of view. A striking exemplification of the views contained
in that Report, has lately come to my knowledge, which I think it may
be proper to offer in this. The island of Ceylon, inhabited in different.
:
mitted it to the jury, with directions, if they found it to be the one (I forget which) to convict,
if the other to acquit ; and to aid in the determination of this important question, he handed
them his glass-the microscopic powers of which determined them in favour of the acquitting
alternative—and the prisoner was discharged: if the judge's glass had not been brought into
court, or had been of a lower power, he would have been hanged ! ! !
(a) Report on the Plan of a Penal Code, p. 10.
THE CODE OF PROCEDURE.
227
proportions by Hindoos, Mahometans, and descendants of emigrants from
Siam, Ava, and other parts of the eastern continent and its adjacent
islands, passed successively under the dominion of the Portuguese, Dutch
and English, who have added to the heterogeneous mixture of inhabitants
by a number of their descendants, springing from an intercourse with the
native women. The English, having conquered this island in 1796, have
ever since been in quiet possession of this valuable colony. For the ad-
ministration of justice, the Dutch had introduced the civil law, by which
the country was governed until the year 1811, when sir Alexander
Johnston, chief-justice of the island, succeeded in the bold project of in-
troducing the trial by jury into the criminal courts of the colony. Let
those who doubt the political utility of this institution-who think it
fitted only for the people of highly civilized and well-informed nations-
who do not appreciate its power in spreading information and elevating
the personal and national character; let those, and they are not few,
who have considered the former report on this subject as an effusion of
an enthusiastic veneration for a vain theory; let all those peruse the
following authentic account, furnished from the highest authority, and
confess the almost omnipotent power of this great institution in reform-
ing and elevating the character, overcoming national prejudices, uniting
the most discordant materials, diffusing useful knowledge, purifying the
sources of justice, and demonstrating, by its effects, that no govern-
ments are so strong as those in which the people are suffered to par-
ticipate. Let the enlightened author of this experiment himself explain
its effects. In a letter, written by sir Alexander Johnston to the Board
of Control in the year 1815, he says:
"I have the pleasure, at your request, to give you an account of the
plan I adopted, while chief-justice and first member of his majesty's
council in Ceylon, for introducing the trial by jury into that island,
and for extending the right of sitting on juries to every half caste na-
tive, as well as to every other native of the country to whatever caste
or religious persuasion he might belong. I shall explain to you the
reasons which induced me to propose this plan, the mode in which it
was carried into effect, and the consequences with which its adoption
has been attended. The complaints against the former system for ad-
ministering justice were, that it was dilatory, expensive and unpopu-
lar. The defects of that system arose from the little value which the
natives of the country attached to a character for veracity; from
the total want of interest, which they manifested for a system in
the administration of which they had no share; from the difficulty
which Europeans, who were not only judges of law but also of fact,
experienced in ascertaining the degree of credit which they ought to
give to native testimony; and finally, from the delays in the proceed-
ings of the court. The chief-justice then details the remedies he
proposed for these evils, which could only be removed, as he thought,
by the introduction of the trial by jury. He says, that he then con-
sulted the chief priests of the Budha religion, and the Brahmins, as
to the effect it would have on the followers of those religions; and
having submitted his plan to the governor and council, who "thinking
the adoption of the plan an object of great importance, and fearing
lest objections might be urged against it in England on account of its
novelty, no such rights as were proposed to grant to the natives of Cey-
lon ever having been granted to any native of India," sent him to
urge its adoption, and he most fortunately succeeded. The chief-justice
""
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INTRODUCTORY REPORT TO
the
then proceeds to explain the qualifications of jurors, the manner of se-
lecting them, and of conducting the trial; all of which, though highly
interesting, do not so immediately apply to my subject, as the ac-
count of the effects, which he thus details: The native jurymen being
now judges of fact, and the European judges the judges of law, one
European judge only is necessary. The native jurymen, knowing
the different degrees of weight which may safely be given to their
countrymen, decide upon questions of fact with more promptitude.
All the natives, who attend the courts as jurymen, obtain so much
information during their attendance, relative to the modes of pro-
ceeding and the rules of evidence, that since the establishment of
jury trials, government have been able to find among the half-caste
and native jurymen, some of the most efficient and respectable ma-
gistrates in the country." After stating that the saving it produces
to government is at least 10,000l. a year, he proceeds :-" No man
whose character for honesty or veracity is impeached, can be enrolled on
the list of jurymen. The circumstance of a man's name being upon
jury-roll, is a proof of his being a man of unexceptionable character, and
is that to which he appeals, in case his character be attacked, or in case
he solicits his government for promotion. As the rolls of jurymen are
revised by the supreme court at every session, they operate as a most
powerful engine in making the people of the country more attentive
than they used to be in their adherence to truth. The right of sil-
ting upon juries, has given to the natives of Ceylon a value for cha-
racler which they never felt before, and has raised in a very remark-
able manner the standard of their moral feelings. All the natives
of Ceylon, who are enrolled as jurymen, conceive themselves as much
a part, as the European judges themselves are, of the government of
the country, and therefore feel, since they have possessed the right
of sitting upon juries, an interest which they never felt before in
upholding the British government of Ceylon." He then gives as a
proof of this, their indifference in wars before this privilege, contrast-
ed with their zeal in those after it was conferred. The writer of this
interesting and highly instructive letter refers, as a proof of his
assertions, to a charge delivered by his successor eight years after the
experiment was tried, in which he ascribes a remarkable decrease of
crimes, "above all other causes, to the introduction of the trial by
jury. To this happy system," he proceeds, " now deeply cherished in
the affections of the people and revered as much as any of their own
oldest and dearest institutions, I do confidently ascribe this pleasing
alteration; and it may be boldly asserted, that while it continues to
be administered with firmness and integrity, the British government
will hold an interest in the hearts of its Singalee subjects, which the
Portuguese and Dutch possessors of this island were never able to
establish."
The statement of this case, tallying so exactly with the ideas I had
expressed some years before the letter was written, is worth volumes
of arguments, and every reflection I have given to the subject since,
and they have neither been few nor cursory, has convinced me so much
of the danger of tampering with so great a blessing, of injuring in the
attempt to ameliorate what is so positively good, that I could not ven-
ture to propose any alterations, although some came recommended by
the most plausible reasons as valuable improvements: among these was
that of substituting for the unanimity now requisite to a decision, a bare
THE CODE OF PROCEDURE.
229
majority of votes, or some other number less than the whole. The
absurdity, as well as cruelty, of enforcing that unanimity, under pain
of starvation, and the injustice of making the fate of the accused de-
pend on the ability of his judges to resist hunger and thirst, seem so
apparent, that, if no other remedy could have been found for the evil,
I should, perhaps, have abandoned this characteristic in the trial by jury,
and adopted some of the proposed modifications, to avoid the evil. But
a practice had been introduced, which, where it prevailed, in a great
measure presented the remedy I sought. Courts in the exercise of the
legislative power which they held, partly by assumption, partly by the
negligent permission of the branch to which it of right belongs, had
gradually introduced an important change in this branch of our juris-
prudence when jurors could not agree, instead of being starved, or
in some cases carted into unanimity, they were discharged; and the
contest became one of argument and reason, instead of physical force
and ability to resist the cravings of nature. The objections to this im-
provement, for such experience has shown it to be, are, that being en-
tirely without legislative sanction, it depends on the court to determine
whether it shall be introduced at all, and when it is, what degree of
suffering must be undergone by the jury before they are discharged.
:
In the code presented to you, rules are prescribed for that purpose.
The legislature speaks, and it is no longer imposed upon the court, as
some decisions require, to watch, like the medical attendants on a vic-
tim of the inquisition, over the struggles between nature and famine,
and to discharge the juror only when they are convinced that there is
immediate danger that death will release him(a). The jurors are no
longer to be kept without food; because it is not considered to be well
established, that hunger will bring a man to a correct conclusion, though
it may to a speedy one; and in the system I have adopted, justice is
the first, and celerity only a secondary consideration. Jurors are treat-
ed like reasonable beings, and with the respect due to a co-ordinate
branch with the judges in the administration of justice; subject, indeed,
to their control for the maintenance of order and the advancement of
justice but to a legal control, not an arbitary discretion; their delibera-
tion must be free from the restraint of physical wants-their determina-
tion the result of reason and conviction. Perhaps, too, the concur-
rence of circumstances(b), that probably produced the extraordinary
feature in this mode of trial, which requires unanimity for a verdict,
has been more fortunate than design would probably have been, in
adapting it to the ends of justice in criminal proceedings; for I am in-
clined to think, if a bare majority were sufficient to give a verdict,
that in a secret consultation, where there is no excitement created by
(a) 7 Johnson's Cases, The People v. Olcot.
Chief-justice Kent says, "the power of
discharging a jury, in a criminal case, is a highly important and delicate trust, yet it does
exist in cases of extreme and obstinate necessity.” See the other cases there cited.
(b) It has been conjectured (and I think with reason) that the unanimity afterwards re-
quired, formed no part of the primitive institution of juries, which originally, it is argued from
the analogy of grand juries, the grand assize, and sheriffs' inquests, must have consisted,
like them, of twenty-three, a majority of the whole number (twelve) being necessary for
decision; that afterwards, at some unknown period, probably when suits began to multiply
and the attendance of so many jurors was found burthensome, the practice of summoning
only twelve was introduced, but that the concurrence of the same majority of twelve contin-
ued to be required.
a
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the presence of auditors or by the prospect of publicity, the decision
would, for the most part, be made merely by ascertaining the number
of members on each side, without that discussion which is so necessary
to elicit truth. Indeed, I have been told by those who have served
frequently on juries, and I have made the inquiry in different states,
that the first thing generally done, after they retire, is, previous to any
debate, to take a vote on the question, and a division of opinion al-
ways, under the present system, leads to a revisal of the testimony and
a discussion of the arguments that have been offered; whereas, if a
majority were to decide, the vote would have decided the cause. Ano-
ther consideration, also, must have some weight in favour of the ver-
dict by unanimity: the evidence that subjects a citizen to the serious
consequences of conviction for an offence, ought to be so clear as to con-
vince the understandings of all; if then it should fail to convince one-
fourth, or any other given proportion of the jury, the probability is,
that its impression would be the same on the rest of the community;
and the conviction of a man, whom one-fourth or one-tenth of his fel-
low-citizens believed to be innocent, could not but have effects upon the
confidence which ought to be reposed in the administration of justice
more injurious than his acquittal could be, if, although really_guilty,
he should be pronounced innocent by a unanimous verdict. Reverse
the case, and suppose three, or two, or even a single one, of the jury
so perfectly convinced, from the evidence, that the defendant has com-
mitted the crime, as to be ready to attest his conviction under the sanc-
tion of an oath, and consequently refusing to join in the verdict of
acquittal, while the rest of the jury doubt his guilt or even believe
him to be innocent to acquit him under such circumstances, would
neither restore him to society with the pure reputation that every man,
who has been pronounced innocent by his fellow-citizens, ought to en-
joy, nor will it remove the alarm which his enlargement will create in
a community, a large proportion of which still believed him guilty,
and, of course, encouraged by impunity, ready to repeat his former
crime. Thus, whether we consider the effect of an acquittal or convic-
tion by less than the whole number of the jury, upon the community,
or the accused, upon the administration of justice, or its reputation, we
find nearly the same objections to making any change. If the defend-
ant is acquitted, he returns with a tarnished reputation, and the com-
munity is not relieved from their alarm. If he is convicted, the chance
of his being innocent is increased in proportion to the number of the
jury who believed him so; and the same proportion of his fellow-citi-
zens participating in this belief, will arraign the justice of their coun-
try, and consider him upon whom it has been exercised as an innocent
victim, not a guilty object of just punishment. In the actual adminis-
tration of the laws, we have seen the effect it will produce, of a reli-
ance upon first and cursory impressions, a neglect of due discussion and
a careless decision by shifting the responsibility upon a majority, who
act in secret, and whose names are not distinguished from those of
their fellows. Where all convict, or all acquit, there is responsibility;
upon a secret majority there is none; and to make them record their
names and votes, or to give publicity to all their deliberations, would
be attended with inconveniences too obvious to be detailed. However
just in itself, no system of criminal procedure can be good which does
not create in the mass of the people a belief that he who is acquitted
THE CODE OF PROCEDURE.
231
under it is innocent, and that no punishment can be inflicted but on the
guilty. This belief constitutes the reputation of judicial proceeding,
and it is as necessary to this branch of government as good character
is to individuals; but we have seen that it will be greatly impaired by
any other course than that of requiring unanimity in the jury that de-
cides in criminal cases. It is not my intention to discuss its propriety
in those of a civil nature further than to say, that most of the reasons
I have urged will not apply to the latter. I have dwelt longer on this
subject than I should have done, if I had not found a disposition in the
friends of this institution to rest the defence of this particular feature
on its antiquity, rather than its wisdom or its use; and in its enemies,
to urge this characteristic as an unanswerable objection to the jury trial
in its present form. The legislature will judge whether it has been
wisely preserved or not. This discussion has rather anticipated on the
regular course of this review, the natural order of which is to follow
that of the different chapters of the work; one, which has before been
cursorily mentioned, is connected with the subject we have just left:
it regulates the manner in which the grand and petit juries are to be
selected-in such a way as to equalize the duty upon all the citizens
capable of performing it, and rendering it the means of a gradual dif-
fusion of legal and political information through the whole communi-
ty. The designation is on the principle, now in such successful opera-
tion, of a mixture of chance and selection, which precludes the
possibility of any favour in empanelling the jury, and gives little or
no opportunity for influence after they are chosen.
The seventh chapter of this title lays down rules for proceedings in
court, previous to the trial. The first section gives to the court the dis-
cretionary powers of postponing the trial, whenever such circumstances
are made to appear, by proper proof, as show that justice requires it,
but with the limitation that the defendant, if in custody, must be tried
before the end of the second, or, if on bail, before the end of the fourth
term, unless the delay has taken place at his instance, or by his fault.
After all the precautions given by the mode of empanelling the jury,
it may happen that the forms presented by law, for returning and select-
ing the jurors, have not been observed; that one or more of them may
not be legally qualified to serve on any jury-or, by reason of interest,
partiality, relationship, or some other cause, disqualified to be on the
one for which they are drawn. To secure that impartiality which is
so essential to justice, the law has provided remedies adapted to each of
these cases; they are taken, with but little alterations, from the Eng-
lish law; the technical terms are preserved; but the challenge to the
array can, under this system, only be made for a single cause, that the
forms of the law for forming the panel have not been followed. Where
the names were selected from the community at large, at the discretion
of the returning officer, his interests, enmities, and connexions, with
the party, formed so many reasons for making this challenge; all of
which are avoided by our mode of making out the panel. Exceptions
to particular jurors remain nearly as under the English law. The pe-
remptory challenge, for which the party need assign no reason, is a
wise and humane provision, peculiar, it is believed, to the English juris-
prudence. There are, in life, so many unfriendly feelings, created by
trifles, or for reasons which it would be difficult to assign, but which
destroy the perfect impartiality required in a judge, that we cannot too
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INTRODUCTORY REPORT TO
much admire the provision that enables a party to reject him who may
be affected by these feelings, without being questioned as to his motive.
Considering the little chance there is, under our plan of preparing the
panel, that any great number of persons, unfavourably disposed to any
individual accused, could be found on it, it was thought that giving the
privilege of challenge to nine jurors peremptorily, was a sufficient ex-
tension. The public prosecutor has the same right, but extended only
to three jurors; the reason for this restriction is obvious; the preju-
dice against the public can be supposed, and the only undue affection of
the mind to be guarded against by the prosecution, is favour to the de-
fendant, which, if made apparent by evidence or by the declaration of
the juror, is a disqualification under another head, the challenge for
cause; this may be made both by the defendant and the prosecutor, and,
of course, has no restriction as to number. The reasons for which it may
be made, are set forth at length, and embrace every fact or opinion that
can show the slightest bias for or against the prisoner; and the mode
of trying the facts, which evince this bias, or the disqualifying opera-
tion they may have on the jurors, is prescribed.
The next chapter, which directs the mode of proceeding on the trial,
contains some provisions which call for attention. The jurors are drawn
by lot, not in the order they stand on the panel; a different practice
had obtained in our courts, which it was thought proper to correct, being
a deviation from the English law, and liable to obvious abuse. Any
number of jurors, less than twelve, that may be agreed on between the
prosecutor and the defendant, may try a misdemeanor, for the purpose
of avoiding delay in causes of little importance, wherein a speedy de-
cision may sometimes avoid inconveniences greater than the punishment
of the offence, if the party be found guilty; but it is not allowed in cases
of crime, in which the party can neither renounce the trial by jury, nor
modify it, for reasons which have been already stated at large. The
order in which the case is opened to the jury, and the proof introduced,
is the same as that now in use; but a material change is made, by giving
the closing argument to the defendant. It was thought that this was
proper and just, because it is an advantage, that is to say, a benefit to
one party, that the other does not and cannot, from the nature of things,
enjoy. To whom shall this be given, to the accuser or the accused,
to him who asserts or him who denies? Humanity and justice seem
to dictate the answer. Every address to a judge must be supposed to
contain a new allegation of fact, a new argument, or a new answer to
rebut those which have been offered on the other side; to close the de-
bate, therefore, without suffering the accused to reply to such allegation
or argument, would be in so much as regards it, to decide on his case
without hearing him. The same thing may be said of the prosecution.
The remedy would be to suffer the argument to go on until both parties
declared they had nothing further to say; but this would rarely hap-
pen, and never until the discussion had been protracted to a length so
highly inconvenient as not to be permitted. It seems, then, as has been
said, that the nature of the case imposes the necessity of giving this ad-
vantage to the one party or the other. To give it to the prosecution,
sometimes defeats the ends of justice, by enlisting the feelings of hu-
manity on the side of the accused. There is in human nature, when
not perverted, a feeling repugnant to oppression, which generally sup-
poses power to be wrong, and ascribes innocence to weakness, when-
THE CODE OF PROCEDURE.
233
ever they come in competition with each other; and few cases give such
scope to the imagination to exert itself in this way, as that of a criminal
on his trial-squalid in his appearance, his body debilitated by confine-
ment, his mind weakened by misery or conscious guilt, abandoned by
all the world, he stands alone, to contend with the fearful odds that are
arrayed against him. It is true he has counsel assigned him; but here
again the same feelings operate to lead the judgment astray. This
counsel is generally the youngest counsellor at the bar, who is thus made
to enter the lists with one of the highest abilities and standing, with a
reputation so well established as to have made him the choice of gov-
ernment as the depository of its interests. If you add to all this, the de-
cided advantage of the closing argument, given to a practised advocate,
whom long habit has taught to avail himself of every weak argument
or suspicious fact, and a zeal in the performance of his duty has taught
to believe it proper to do so ;-do this, and of two opposite effects one
must be produced, both injurious to the fair administration of justice:
either the jury will be swayed by the sentiment I have endeavoured to
describe, and feel an undue bias in favour of the prisoner; or if this fails
to act, the last impression given with the force of eloquence and pro-
fessional skill, may, in doubtful cases, have injurious consequences to
the innocent. But give the last word to the accused, and you will do
little more than counterbalance the disadvantages inseparable from his
situation; while, by this show of humanity and disdain of using the
power in your hands, you neutralize the sentiment that would other-
wise be felt in his favour. The provision here recommended makes
part of the French code of criminal procedure, and it is said to have,
in practice, the most beneficial effects.
Another change, of the same character with the one last mentioned,
was noticed in the Report on the Plan of a Penal Code made in 1822(a),
which received the unanimous approbation of the legislature; yet it has
been made the ground-work of an attempt to prejudice the public mind
against the work and its author, as if it were a design to lessen the
dignity of the judiciary branch of our government, suggested by a spirit
of hostility to that department, or of personal enmity to those who fill
it. To repel this is necessary, in reference both to the objection itself
and the motives that are imputed.
A system of penal law, containing principles or provisions injurious
to the power upon which alone it must depend for its execution, would
be an absurdity too gross even for imbecility to produce; and before
it is fixed on the code I have now the honour to offer, it ought to be
strictly examined. The obnoxious article is in the following words(b):
"When the pleadings are finished, the judge shall give his charge to
the jury, in which he shall state to them all such matters of law as he
shall think necessary for their information in giving their verdict ; but
he shall not recapitulate the testimony unless requested so to do by one
or more of the jurors, if there should be any difference of opinion be-
tween them as to any particular part of the testimony, and then he
shall confine his information to the part on which information is re-
quired; being the intent of this article, that the jury shall decide all
questions of fact, in which is included the credit due to the witnesses
who have been sworn, unbiassed by the opinion of the court." This
is the text. I add the reasons as they are given in the first report, that
(a) Page 42.
(b) Code of Procedure, b. ii. c. 8.
2 E
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INTRODUCTORY REPORT TO
the legislature may see whether the provision was not dictated by the
exalted opinion of the judicial character, which, in its purity, it de-
serves; by a desire to prevent any encroachment by the bench on
that feature in our jurisprudence which assigns to the judges the de-
cision of questions of law, to the jury those of fact; and whether in
its operation it will not save the judges from degrading altercation,
render juries more independent and more attentive to their great duties,
and exalt rather than debase the judicial character, and preserve unim-
paired the distinctive characters of the jury and the bench.
This is the extract from the Report. Another article, applicable
to the trial, restricts the charge of the judge to an opinion of the law,
and allows a repetition of the evidence only when required by the jury,
or any one of them. The practice of repeating all the testimony from
notes, always, from the nature of things, imperfectly, not seldom inac-
curately, and sometimes carelessly taken, has a double disadvantage;
it makes the jurors, who depend more on the the judge's notes than on
their own memory, inattentive to the evidence, and it gives them an
imperfect copy of that which the nature of the trial by jury requires
they should record on their own minds. Forced to rely upon them-
selves, the necessity will quicken their attention, and it will be only
when they disagree in their recollection that recourse will be had to
the notes of the judge. There is also another and more cogent reason
for the restriction. Judges are generally men who have grown old in
the practice at the bar. With the knowledge which this experience
gives, they also acquire a habit, very difficult to be shaken off, that of
taking a side in every question that they hear debated; and when the
mind is once enlisted, their passions, prejudices, and their professional
ingenuity are always arrayed on the same side, and furnish arms for
the contest; neutrality cannot, under these circumstances, be expected;
but the law should limit, as much as possible, the evil that this almost
inevitable state of things must produce. In the theory of our law,
judges are the counsel for the accused; in the practice, they are, with
a few honourable exceptions, his most virulent(a) prosecutors. The
true principles of criminal jurisprudence require, that he should be
neither. Perfect impartiality is inconsistent with these duties. A
good judge should have no wish that the guilty should escape, or that
the innocent should suffer; no false pity, no undue severity should bias
the unshaken rectitude of his judgment; calm in deliberation, firm in
resolve, patient in investigating the truth, tenacious of it when disco-
vered; he should join urbanity of manners to dignity of demeanour,
and an integrity above suspicion to learning and talent; such a judge
is what, according to the structure of our courts, he ought to be-the
protector, not the advocate, of the accused-his judge, not his accuser;
and while executing these functions, he is the organ by which the sa-
cred will of the law is pronounced. Uttered by such a voice, it will
be heard, respected, felt, obeyed. But impose on him the task of ar-
gument, of debate; degrade him from the bench to the bar; suffer
him to overpower the accused with his influence, or to enter the lists
with his advocate, to carry on the conflict of sophisms, of angry argument,
of tart replies, and all the wordy war of forensic debate: suffer him to
(a) The conduct of some judges would justify this epithet; but, on reflection, I
regret that it has been so generally applied as is done in the text; zealous would have
better expressed the idea I meant to convey.
1
THE CODE OF PROCEDURE.
235
do this, and his dignity is lost, his decrees are no longer considered as
the oracles of the law; they are submitted to, but not respected; and
even the triumph of his eloquence or ingenuity, in the conviction of
the accused, must be lessened by the suspicion that it has owed its
success to 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 mem-
bers of the jury may differ."
In speaking of the formation and functions of juries, the greater part
of that which relates to verdicts, the subject of the next chapter, was
anticipated. Some articles deserve consideration. The term, offences
of the same nature, frequently occurs in this system, and it is import-
ant to keep in mind the sense in which it is declared to be used. Of-
fences, we must remember, were arranged in relation to this object
under a variety of heads; as offences against person, property, reputa-
tion, and the like. All offences arranged under the same head, are
offences of the same nature of these, some are higher, others lower
in degree; the lowest being the first in numerical order, and ascending
on a scale prepared by a view of the injurious effects of each offence
combined with the degree of moral depravity evinced in, or usually at-
tendant on, its commission. This explanation is necessary to an
understanding of the power, given to the jury, to find the defendant.
guilty of a lower offence, of the same nature with the one charged in
the indictment, provided that the lower offence be produced by the
same circumstances; thus, if one be indicted for murder, the jury may
convict of manslaughter or negligent homicide in any of the degrees;
if he be indicted for battery or theft, aggravated by any other circum-
stances which enhance the guilt of the offender, the jury may convict
of any of those offences of the same nature, which are lower in the
scale of crime; but it must be the same homicide, the same battery,
the same theft, that is charged in the indictment. On the contrary, on
an indictment for negligent homicide in the first degree, the party may
not be convicted of manslaughter, murder, or any of the other degrees
of homicide; nor, if indicted for simple theft, can he be found guilty
of robbery; but if on the trial the evidence is found to support a
charge of a higher degree than the one set forth in the indictment, the
court is directed to discharge the jury and send the witnesses to the
grand jury, for the purpose of having an indictment preferred for the
higher offence.
In cases of acquittal for insanity, that fact is directed to be certified,
and the court is empowered to take proper measures for the confine-
ment of the party or his delivery to his relations.
In the mode in which verdicts are taken, at present, on charges of
forgery, a difficulty sometimes arises, where there is an acquittal, to
know on what grounds the decision was made; whether they believe
that the instrument was forged, but that the defendant was not the per-
son guilty of the crime; or that the instrument was made by the person
whose act it purported to be, and consequently that no crime had been
committed. By the code, whenever the acquittal is made on the last
mentioned ground, the jury are directed to declare, and the court to re-
cord it; so that the finding may serve as an authority for the person,
whose property the instrument is, to receive it. In the first case, it re-
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INTRODUCTORY REPORT TO
mains in the hands of the proper officer as the means of prosecuting the
offender, whenever he is discovered. But the court is authorized to
make such order respecting it, as may be required for the ends of jus-
tice, in case any civil suit should be commenced which may make its
production necessary.
In cases of conviction, if the court think the jury have mistaken
the law, they may order them to reconsider their verdict, after giving
them an explanation of the law; but they have not this power given to
them where there has been a verdict of acquittal. Directions are given
for ascertaining whether the assent of each juror has been given to the
verdict declared by the foreman, and for recording it. When the verdict
of acquittal is entered and recorded, the defendant is entitled to his im-
mediate discharge, without any detention for fees, costs, for any expenses
incurred by his confinement, except only in the following cases: where
other charges are legally exhibited against him; where the public prose-
cutor requires a detention not exceeding twelve hours, to frame such
charge on an official allegation to the court, that he has the evidence to
justify it; or on the allegation of sufficient causes for a new trial if pro-
perly supported by evidence. The causes that are deemed sufficient
are precisely enumerated, and all are founded on some malpractice of the
defendant, in producing suborned witnesses, or forged papers-in pre-
venting, by fraud or force, the attendance of the witnesses for the pro-
secution-in giving evidence out of court to the jury-in bribing a juror,
or causing an illegal panel to be returned. A much longer list of suf-
ficient reasons is given for setting aside the verdict when it is one of
conviction; and the mode is pointed out by which the facts, in either
case, are to be substantiated. The long title of arrest of judgment,
under our present system, is abridged to a short chapter; and all the
causes for which the defendant may now hope for impunity, after his
guilt has been ascertained, are reduced to a single one-that the act of
accusation does not contain the allegation of any fact; or any fact cou-
pled with an intent, that is by law created an offence. But the allow-
ance of the motion in arrest of judgment, only places the party in the
situation in which he was before the indictment was found-liable to
be again indicted, if the evidence is sufficient for that purpose.
If the
code has been supposed too favourable to the accused, in some of its
features, it has, on the contrary, been considered as too severe in this;
but after the best reflection my mind has been able to give to the sub-
ject, it can perceive no injury but to the guilty in thus restraining the
effects of allowing a motion in arrest of judgment, nor any unnecessary
vexation even to them. Suppose the case of one brought to trial on an
indictment which charges facts that do not amount to an offence; if this
defect had been pointed out before the trial, no one supposes that it
ought to operate as a discharge from further prosecution. Why should
it, after a jury have given their sanction to the truth of the facts, and
after the defendant has purposely, perhaps, omitted to avail himself of
the exception? No good reason can be alleged even the maxim that
no one shall twice be put in jeopardy, perverted as it has been, cannot
be brought to bear on the question; for surely no one can be said to be
put in jeopardy by a trial for facts not criminal in themselves, and which
he might have confessed without incurring any penalty whatever.-
Three days, after a verdict of conviction, are allowed for making a mo-
tion in arrest of judgment or for a new trial; at the expiration of which
time, the prisoner is to be brought into court for sentence: previous to
THE CODE OF PROCEDURE.
237
pronouncing it, the prisoner must be interrogated to know whether he
can allege any cause why judgment should not be given. The several
matters which it will avail him to show, in answer to this interpellation,
are only four a pardon-insanity-inevitable accident, that prevented
a motion for a new trial or in arrest of judgment within the three days
—or a denial that he is the person convicted. The mode in which
these several allegations are to be substantiated and disposed of, is
pointed out; and previous to the sentence it is provided, that such
matters in aggravation, as were not necessary to be stated in the indict-
ment, may be shown by the prosecution-and such in extenuation, by
the defendant, as would not, on the trial, have proved him to have been
entirely innocent.
Before we consider the matters incident to the judgment, it may be
proper to review the provisions which characterize the previous pro-
ceedings, and which were framed with the view of depriving offenders
of every reasonable hope of escaping from defects of form, an inesti-
mable advantage in criminal procedure; but which would be purchased
too dear if attained at the expense of unnecessary risk to the innocent,
or any vexation that may be avoided to the party, whether guilty or
innocent. As the law is now administered, there is a certain class of
defects, not very clearly defined, which are called defects of substance;
for these the defendant may move to have the indictment quashed,
that is, declared to be void, before the trial; or he may take the
chance of a verdict in his favour, and if that hope fail, he may move
to arrest the judgment after a verdict against him. This latter course
he is always advised to pursue, if his advocate thinks the objection a
good one, because the effect of quashing the indictment leaves him lia-
ble to a renewal of the prosecution; but when the judgment is arrested,
he is for ever discharged, although his guilt be apparent. Now, most
of these things called defects of substance, are in reality nothing more
than mere defects of form. Sometimes the omission of writing the
name of the county in the margin of the indictment, although it be
stated in the body of the instrument itself; sometimes not putting it
in the indictment, although it be in the margin, and other omissions of
the like nature; the variance of a letter between the original and the
copy of an instrument set forth in the indictment; sometimes even of
a comma, has been held a sufficient cause for setting aside a conviction
and discharging the guilty convict without punishment. In England
and in this state, which, as we have seen, are governed as to certain
crimes by the same law, any defect of form whatever may produce this
effect. I say may produce it, because this, like other points of practice,
depends very much on the will of the judge; the law having varied in
this respect, not by the act of the legislature, but by the changing de-
cisions of the courts; for Sir M. Hale laments, that "that strictness
has grown to be a blemish and inconvenience in the law and the
administration thereof; for that more offenders escape, by the over
easy ear given to exceptions in indictments, than by their own inno-
cence."
Here we have the highest authority, not only for the existence
of the evil, but for the fact of its being produced by the decisions of the
court, not by any positive law; and consequently, if one set of judges
have altered the law by being over easy in listening to exceptions, other
judges may restore it to its original state in which it was before the
"strictness grew to be a blemish," or they will have a plausible, if not
a legal reason for increasing that strictness, because it is expressly
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INTRODUCTORY REPORT TO
stated to be law(a), that none of the statutes, which allow amendment
in civil cases, extend to those of a criminal nature. It is of little con-
sequence, however, to inquire from what cause this strictness, so inju-
rious to the administration of justice, proceeds, provided we guard
against its effects in future. This has been attempted not by abolishing
the necessity for forms, but by supplying them whenever they have
been omitted, and amending them when they are defective. The gene-
ral enunciation of this feature in the code was so much assailed by the
allegation, that allowing the amendments would enable the prosecuting
officer to harass by charges that might surprise the defendant to his
vexation and injury. An inspection of the provisions by which this
characteristic in the plan is to be carried into execution, it is confident-
ly believed, will obviate that objection; no amendment materially alter-
ing the charge can be made, but either by the agency of the grand jury,
which would never lend itself to vexatious proceeding; or by the act of
the defendant himself, when he points out an error arising from misno-
mer, inaccurate copies, or defects of this nature. Innocence has nothing
to fear, nothing to complain of, from this proceeding; guilt, every
thing to dread; public justice, every thing to gain. I consider the
adoption of this part of the code so essential to the success of the
whole, that I must be excused for pressing the strict examination of it
upon the attention of the legislature. Nothing so much fosters the
growth of crimes, as the hope in the culprit that some defect of form
will enable him to escape; and nothing encourages that hope so much
as the numerous and sometimes frivolous objections that are allowed;
and this is called the tenderness and humanity of the law!-when, in
fact, it is, in the words of Sir Matthew Hale, its "greatest blemish
and inconvenience." The character of humanity must be acquired,
not by facilitating the impunity of offenders, but by the strict infliction
of mild punishments, when guilt has been proved; and it is a strange
tenderness to boast of, which suffers a villain to escape his punishment
because a clerk has omitted a word, or inserted one too many, in copy-
ing an indictment.
We come now to the consummation of the judicial authority in its
operation upon offences. The functions of the judge cease when he
has pronounced the sentence, unless extraordinary circumstances should
require him to communicate with the chief magistrate, in relation to an
application for pardon; but even then, the duty he performs is that of
a witness of facts disclosed on the trial, rather than that of a judge.
This last office is also the most important. In a system of penal law,
which has fine and imprisonment for its chief sanctions, a great scope
must be allowed for the discretion of the judge. The circumstances
which aggravate or extenuate an offence, which make a punishment ruin
to one individual, which would not be felt by another, are too numer-
ous to be detailed, and too much dependent on events to be foreseen.
But much may be done, although we confess our inability to do all, and
we ought to advance in the path of improvement, although we despair
of its leading us to perfection. We have prescribed limits to the dis-
cretion of the judge, because we cannot fill up the interval by applying
our scale to unknown events. The combination of those events may
produce different degrees of depravity for which we cannot anticipate
the exact punishment that ought to be applied; but we can foresee and
(a) 4 Black. Com. 375.
THE CODE OF PROCedure.
239
寥
​can enumerate certain probable circumstances in the commission of every
offence, which ought to aggravate or lessen the punishment, although
we cannot direct in what precise degree they ought to have that effect.
This has been done in the code now offered to you. It contains two oppo-
site details of circumstances, which ought to increase above, and those
which ought to diminish below the medium rate of punishment, which
is declared to be that which ought to be inflicted where none of these
circumstances exist. Thus, if the code direct that the punishment of
an offence shall be fine, not less than one hundred nor more than three
hundred dollars; the medium is two hundred, which it is the duty of the
judge to award, if there be no circumstances of extenuation or aggrava-
tion. The nature and extent of the obligation arising from this address
to the judgment of the court, is fully explained in the text, and the rea-
son for resorting to it has more than once been adverted to in the report.
The fourteenth chapter is devoted to the forms of conducting the
ordinary business of courts. One of the most important of these, is the
oath or affirmation to be administered to jurors and witnesses; those
now in use to officers, are, for reasons that will be given, abolished.
These engagements are either promissory or declaratory; the juror's oath
being of the first, that of the witnesses of the last description: a breach
of the promissory oath not incurring, like that of the other, the punish-
ment of perjury, as we have seen in the penal code. Some changes
having been proposed under this head, it will be necessary to make a
brief statement of the reasons which have produced them. The neces-
sity of providing some test for the truth of declarations which were to
operate as judicial proof, and some bond for the performance of promises,
in a very early state of society, suggested, on him who should be
guilty of a breach of such engagement, an imprecation of divine dis-
pleasure; which was thought to be inevitable, when the appeal was
voluntarily made by the party upon whom the vengeance of heaven
was to fall, if his promise was broken, or his declaration false.
lief in a Supreme Being, and in his agency in punishing evil and reward-
ing virtue, either in this life or another, was essential to this religious.
sanction of an oath; as it was the first, so it has generally been esteemed
the most powerful; another, however, may be said to be inseparable
from the first. The sacrilegious wretch, who had by his broken vows
incurred the vengeance of God, could not retain the good opinion of
man, and another surety was added in the loss of reputation, which
would be incurred by the perjurer. The chastisement which he had
invoked upon his head, was observed not always to follow his guilt in
this world, and the fear of that which might follow in the world to come,
was weakened by doubt, by irreligion, and the prevalence which pre-
sent advantage generally has over distant and uncertain evil; and it be-
came necessary to add the temporal penalties denounced by human laws
against perjury; thus completing the triple tie of the religious,
honorary, and civil sanctions to the obligation of an oath. Some
sects from religious principles, and some writers from a specious theory,
have rejected the religious sanction: the first, because, according to
their tencts, it is contrary to the express precept of the founder of our
holy religion; the second, for reasons which it may be useful to ex-
amine. Religious scruples will with difficulty yield to civil laws,
and where their indulgence does not operate any great evil to society,
a wise legislator will not attempt to overcome them. Throughout
A be-
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INTRODUCTORY REPORT TO
the United States, therefore, those Christians who cannot conscien-
tiously take an oath, have the same credit given to their affirmation;
which derives its whole force from its civil and honorary obligation.
Those who are for abolishing the religious sanction, say, that it is not
only useless but injurious, and even profane useless, because where
religious motives produce a determination to tell the truth, they
will always operate, whatever be the form of the engagement and
where there is no religion, the form can have no effect. Injurious, be-
:
:
1
cause it creates a false confidence in the declaration of one who has no
religious sentiment, and adds nothing to the credit of him who has; be-
cause religion cannot be introduced in civil institutions without weaken-
ing their effect; because, with many, religion consists in form, and if
that form be varied in the slightest degree, the religious obligation is
not incurred, and the other obligations, being considered as inferior,
are overlooked and because, the oath being a religious ceremony, was
subject to ecclesiastical control, might be dispensed with, and its breach
pardoned or expiated (a). Profane, not only because it is in opposition
to the plain and express command of the Scripture, but because it sup-
poses a power in him who imposes, or him who takes the oath, to direct
Almighty vengeance at his pleasure, and often for trifling or even unwor-
thy objects. When properly developed and coolly considered, these ob-
jections have weight; and if I were now, for the first time, devising
the formula of a judicial asseveration to declare the truth, I think I
should omit the conditional renunciation of God's favour, which it now
contains. The general impression now existing of its necessity, the
abandonment of all pretension to right by any ecclesiastical power in
our day to dispense with its obligation, and the danger of a sudden
change, have combined to induce me to retain this part of the oath in
ordinary cases; but with the proviso of extending the right of dispens-
ing with it in favour of all those who declare they have religious scruples,
in the same manner that the same dispensation is now given to Quakers
and Memnonists. But while this part of the form has been retained, it
was to be feared, and experience shows that there is some ground for
the apprehension, that there are men who do not feel the force of this
obligation, and are ready to risk the legal consequences, but who yet
might be restrained if an address were expressly made to their honour
and integrity. There are perverse and extraordinary ideas enter-
tained on this subject: one will conceive the oath not binding on his
conscience, if administered on any other book than the New Testament;
a Jew may think it of no force unless the old be presented to him; this
man conceives himself obliged to tell the truth only when he declares
that he will do so with uplifted hand; another, who does not mind kiss-
ing the book, as he irreverently styles it, will be scrupulously exact
in what he declares upon his honour. These considerations have in-
duced me to incorporate into the form of the oath a clause to bind those
of the last description.
As has been observed, all persons belonging to any sect, having re-
ligious scruples to take an oath, may substitute an affirmation. The
(a) Dumont gives an extraordinary instance of this power. Clement VI., he says, granted
to John the III. of France, and Jane his wife, and to all their successors, the right, without
incurring any sin, to violate their promises and oaths, as well those they had already made
as those they might thereafter make, provided it was not their interest to keep them, and
provided also that they commuted the obligation in some work of piety.
the code of procedure.
241
declaration of the party that he does belong to such sect is sufficient
evidence of the fact; and although that declaration be untrue, the breach
of the affirmation carries with it the consequences that the breach of an
oath would have done.
A clause is added to the affirmation referring expressly to its legal
sanction.
To avoid the frequent repetition of oaths, in judicial proceedings,
none are administered to a sworn officer when called on to do a parti-
cular duty, such as going out with a juror, or the like.
To give greater solemnity to the obligation, the form is repeated by
the person to whom it is administered, during which strict silence is
to be observed by all those not concerned in taking or administering it,
and no other business is to be transacted in court during the ceremony.
The oaths and affirmations of jurors and witnesses are so framed, as to
bring their respective duties forcibly before them, as well as the penal-
ties attending a neglect of their performance; and an endeavour is
made to enforce the necessity of preserving the requisite solemnity in
a ceremonial generally treated with the utmost levity, but which re-
quires every aid that an imposing form can give to enforce the idea of
its obligation. One peculiarity in the oath of a witness ought, perhaps,
to be pointed out. At present he is sworn to declare the whole
truth," yet when he proceeds to comply with this obligation, he is,
perhaps, stopped by the counsel or the court, and told, "what you
are now about to say is not legal evidence, and although it is part of the
truth, the whole of which you have sworn to tell, yet you are not per-
mitted to tell what we have obliged you to swear that you would tell."
This incongruity is remedied by a clause in the proposed form of the
oath.
The three remaining sections of this chapter regulate the manner of
opening and adjourning the court, keeping the minutes, calling the
jurors, witnesses and officers, and imposing fines for their non-attend-
ance; and to supply any omission in this part of the code, authority
is given to the courts to make additional rules of practice; but they
are to be submitted immediately after to the legislature, to the end that
they may prevent any infringement of the law, and preserve a uni-
formity in the form of proceeding in all the different courts.
The necessary officers of the courts are enumerated in a succeeding
chapter, and their several duties specially pointed out. The only ad-
dition to those now employed, is the reporter; his duties are, to make
reports of all causes that are tried, and all points of law that are de-
termined in the court, and to publish them at stated times, and to
inake regular returns of all commitments, accusations, indictments, in-
formations and trials, in such form as to give every desirable informa-
tion of the state of crime and criminal jurisprudence in his district.
These returns are to be made to the governor, to be by him laid before
the legislature. A mass of information will thus be collected, which
will be of the utmost value in future legislation(a).
Although publicity is of the highest importance in the administration
(a) Both in France and in England these returns are considered as of the highest im-
portance, and the greatest pains are taken to make them as minute as possible. The tables
of the state of crime in France, are more perfect in their form than any that have any where
been produced.
2 F
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INTRODUCTORY REPORT TO
of justice, yet public morals require that certain investigations should
form exceptions to this rule. A chapter, therefore, provides that, in
certain enumerated cases, the details of which would only foster pas-
sions injurious to society, or wound the feelings of the innocent con-
nexions of the parties, no persons but the necessary attendants and
officers of the court, the witnesses, jurors, and a limited number of
persons indicated by the party and the prosecutor, shall be admitted at
the trial, and that no report of the details shall be published.
A short chapter directs, that until the system by which magistrates
and officers of justice are remunerated for their services, by the pay-
ment of fees, be abolished, the state, and not the defendant, shall pay
costs in all cases of discharge for want of prosecution, or on acquittal;
and that, in cases of conviction, the court may either exonerate the
defendant from the payment of them, or make such an apportionment
as may suit the circumstances of the case; and no person is to be de-
tained for the payment of costs, until after a discussion of his property,
and then only for the term limited in the case of fines.
This finishes the review of that part of the code which prescribes
the ordinary course of procedure in criminal trials. The concluding
chapter of this title relates to a subject which could not be brought pro-
perly under any of the preceding heads.
The propriety of allowing any lapse of time to prevent the prose-
cution of an offence, has frequently been called. in question, and for
such cogent reasons as have induced the allowance of prescription only
in the following cases: misdemeanors for private offences; crimes
which can only be prosecuted on the complaint of designated persons;
attempts to commit crimes when not accompanied by any offence. This
plea is allowed in the first case, because the evil of the offence falling
chiefly on an individual, it must be presumed to have been too trivial
to attract the notice of public justice, if it be not prosecuted within
the limited time; but this presumption is rebutted by showing that the
party injured was out of the state, or prevented by force or threats.
from making the complaint. The same reason partially applies to the
second case, Crimes, which can only be prosecuted by designated per-
sons; as the prosecution could only be made by them, the delay will
be presumed to have arisen either from a determination not to accuse,
or for the purpose of taking some unfair advantage. The same causes
that are enumerated under the third head destroy the prescription;
attempts to commit crimes are prescribed, because they approach so
nearly in their nature to private misdemeanors, which enjoy that pri-
vilege, that it appeared unjust to make any distinction; but chiefly be-
cause no offence having been actually committed, and the sole question
being that of intent, great injustice might ensue from instituting an in-
quiry of that nature, after a lapse of many years. All other offences may,
at any time, be prosecuted, because, allowing them to be barred, would
hold out a reward to ingenious villany and address in concealment ;
and, as(a) has been very forcibly expressed; to show the absurdity
of suffering any lapse of time to bring impunity, only suppose the law
conceived in these terms, "but if the robber, the murderer, the thief,
can during twenty years elude the vigilance of justice, their address
shall be recompensed, their safety assured, and the proceeds of their
crime legalized in their possession.
""
(a) Traité de Legislation, tom. 1. p. 148
THE CODE OF PROCEDURE.
243
The third and last title of this book contains directions for the mode
of procedure in cases not immediately connected with the procedure
in courts. The first chapter relates to inquests on dead bodies, found
under circumstances that may induce the suspicion of homicide. These
do not materially vary from those now in use. The utility of this
institution is apparent, and has been tested by experience. The pub-
licity of the proceeding destroys unjust suspicion, which, but for this
inquiry, the innocent would have no means of showing to be false; and
it is eminently calculated to bring the guilty to punishment. The in-
quiry immediately made, before any means can be devised for conceal-
ment, the view of the body, the examination of skilful professional men,
the power to compel the attendance of witnesses, and the concourse of
neighbours and friends bringing with them proof of circumstances that
would escape any more tardy or less public inquiry, are most power-
ful means for bringing to light crimes often committed against human
life. The inquest, however, has not, as in England, the effect of an
indictment, because the want of time and professional aid frequently
render it defective; but it may be made the foundation for one, and,
with all the proceedings, is to be laid before the grand jury, in all cases
where death is found to have been occasioned by a crime. The coroner
has the same powers conferred, and duties enjoined, as belong to other
magistrates, in cases of examination, bail and commitment.
The second chapter regulates the mode in which the examination of
a body shall be made in cases of suspected murder. It gives the power
to a family meeting, or to a magistrate, and directs the manner of pro-
ceeding in the investigation. There are no provisions in our law on
this subject, but it was deemed one that required legislative attention.
The fraudulent appropriation of property found, being created an of-
fence, distinguished from theft, with which it is frequently confounded,
by extending the doctrine of constructive possession, it was thought
just and requisite that the law should direct the honest finder in what
manner to proceed, with respect to the property found, so as to avoid
unjust suspicion, by observing the rules, and to facilitate the convic-
tion of the dishonest by his breach of them: this forms the subject of
the third chapter.
The fourth directs the mode in which vagrancy may he proved,
and under what circumstances vagrants may be committed to the
House of Industry. This class of men, who hang on to society
rather than belong to it, although not absolutely criminals, are yet so
near the verge of it, and are so generally the nursery for criminals of
every description, that preventive justice is forced, with respect to them,
to measures not strictly in unison with its usual course; but this sub-
ject will be so fully discussed in the Introductory Report to the Code of
Prison Discipline, to which it properly belongs, that the legislature are
respectfully referred to that part of the system, as well for the measures
recommended for the employment, restraint and reformation of these
people, as for the reasons which suggested these measures.
In criminal proceedings, no question presents itself which is, at times,
more difficult of solution, or more important to be accurately answer-
ed, than that of alleged insanity. When it occurs as a defence on a
trial of the merits, little more need be provided by law, than to direct,
that when ascertained to have existed at the time of the act, it takes
away an essential quality of guilt. But when the alienation of mind is
244
INTRODUCTORY REPORT TO
alleged to have occurred after the act but before the trial, after the trial
but before the judgment, after the judgment but before or during the
execution of the sentence, no mode of trial of the fact is provided by
law; and yet, at each of these periods, particular provisions are necess-
ary, as well to ascertain the fact, as to direct what is to be the conse-
quence of its being found to exist. This is done by a chapter in this
title, and by it an omission in our law, important to justice and to hu-
manity, is supplied.
The Code of Crimes and Punishments having directed, in order to
avoid collusive prosecutions for adultery, that in all prosecutions for this
offence against a supposed adulterer, the offending wife shall be joined,
and having referred to this code for the manner of conducting it, it is
directed, that where the defendant is so charged, shall have been cited
or arrested, but shall not appear, that an attorney shall be named to
represent him, and that the trial shall proceed in his absence; and that
if he have left the state, so as not to be served with process, a warrant
shall issue and be renewed from time to time until the trial, which, if
he do not appear, may proceed against the wife alone.
The collection of small fines, imposed by courts, is not now sufficient-
ly enforced. The code remedies this defect, requires frequent returns
by the collecting officers, and makes it the duty of the state treasurer
to prosecute such of them as are delinquent, and to carry all such sums,
as may be collected, to the credit of the "Compensation Fund," which
has been referred to in the beginning of this Report, where it is spo-
ken of as the means of paying the premiums for extraordinary services
and providing the marks of honorary rewards; it is here also burthened
with an indemnity directed to be paid to all those who shall receive, on
their being discharged before trial of an alleged offence, a certificate
from the judge, or from the jury who shall acquit them on the trial,
that no improper conduct gave reasonable ground for suspicion. This
indemnity is granted on the ground that society is bound to compensate
all such evils as are necessarily incurred for its safety, where they are
not the result either of an obligation binding on all the citizens in gen-
eral, such as assisting the civil officers in preserving the peace; or of
losses so great in amount and general in their nature as to become too
burthensome to the rest of the community, such as granting indemnity
for the ravages committed by an invading enemy, or the conflagration
of a city to prevent its falling into his hands. The injury received by
a groundless accusation is of another character. It is not the result of
any duty, and it can be compensated without any great sacrifice. When
the prosecution is malicious as well as ill-founded, the state is exonerat-
ed from this burthen, for the loss was not incurred for its benefit; and
the indemnity may be recovered against the malicious prosecutor. The
state is only bound to pay when there was reasonable ground for sus-
picion, but which did not arise from any negligence or imprudence of
the party accused. The amount of the compensation is to be fixed by
the judge, but under limits which effectually prevent its being made the
object of collusive speculation, while it affords the relief which justice.
requires to the poor and the oppressed.
Four General Provisions are inserted at the conclusion of this
book. By the first it is declared, that no omission of any mat-
ter of form presented in this system, nor any departure from the
forms given for proceeding under it, shall render the proceeding void,
THE CODE OF PROCEDURE.
245
unless it be so specially provided; or unless the departure from the
form has caused some injury to the party complaining of it. The in-
sertion of this article is another attempt, and no good system can con-
tain too many, to counteract the constant and fatal tendency to sacri-
fice substance to form. The second was, perhaps, superfluous;
that when a particular and a general provision conflict, the former
must prevail. A rule of true construction would sufficiently enforce it;
but true rules of construction are not always those that are adopted.
Although a strict adherence to the distribution of the system would
have required that all offences whatever, as well as the punishment as-
signed to them, should have found their place in the Code of Crimes
and Punishments, and not elsewhere; yet it was deemed expedient to
depart from this rule in many cases, where a penalty is annexed to
the non-observance of a rule laid down in any of the other codes. The
inconvenience of a constant reference from the one code to the other
would have been an inevitable evil, but one of the least attendant on
the transfer of the definition of the offence to the former. The two
subjects, in their nature distinct, would have been so amalgamated as
to create a greater confusion than that which it is the intention of the
system to correct. Certain offences, then, being necessarily defined
by this code, and the punishment denounced, the third provision of
this chapter became necessary, which directs that all offences, created
by this code or the Code of Reform and Prison Discipline, shall be
prosecuted and tried in the same manner with those which are created
by the Code of Crimes and Punishments. The last article gives rule
for calculating the time allowed by the code for certain notices and
other proceedings.
The concluding book of this code contains forms for all the proceed-
ings which are directed or authorized by its preceding parts. In
framing them, which has been done with much care, the object kept
constantly in view, was to unite brevity with so much certainty and
precision as would secure the party from any possibility of mistake,
as to the precise fact of which he is accused. If the reporter has
been successful in this, he has attained a most important object, by
closing the door against one of the greatest evils in penal jurisprudence.
He offers this branch of the system, with the same diffidence of his
own powers that attended the presentation of the first; the same hope,
that what is good in it may be preserved, and what is bad corrected;
and the same firm reliance on the industry and patient research of the
legislature in examining, and on their wisdom in making a decision on
its merits.
INTRODUCTORY REPORT
TO
THE CODE OF EVIDENCE.
No branch of jurisprudence requires greater certainty and more sim-
plicity in its provisions, than that of judicial evidence. But there is
none in which so little of either is to be found. The reason is, that,
with fewer exceptions than exist in any other division of the science,
it has been abandoned to the vacillating authority of decisions, for its
creation and amendment, without any superintendence of the legisla-
tive power. This was a natural consequence of the transition from the
semi-barbarism of the middle ages, to the more improved state of the sci-
ence in modern times. During the period when the divine power
was invoked, and supposed specially to interpose in litigated questions,
by protecting innocence and making justice prevail in the ordeal and
the battle, human testimony would of course be considered of minor
importance. In proportion, however, as these miraculous interven-
tions of the Deity ceased to obtain credit, and the agency of human
justice and discretion was called in to supply its place, it became ne-
cessary to consider what evidence ought to be received in order to di-
rect them. But no legislative provision had been made for this change,
which was imperceptibly produced as the mists of ignorance and the
veil of superstition were slowly withdrawn. In every case in which
the witness was substituted for the champion, and the ordeal of jus-
tice for that of the elements, the court was obliged to make some rule
for securing the appearance of the witness; interrogating him to come
at the truth; determining what persons ought to appear in that charac-
ter, and what degree of credit, under different circumstances, was due
to their testimony.
In the earlier periods of jurisprudential history in Europe, the dis-
tinction between oral and written evidence can scarcely be observed.
But when literary education became more common, writing was pre-
scribed by the legislative power, in some cases, as a check upon the in-
accuracy of testimonial evidence; and as the few laws it was found ne-
cessary to pass were couched in general terms, and frequently in ob-
scure language, the judges thought themselves authorized to supply de-
ficiencies, and sometimes to restrict what they deemed the too com-
prehensive words of the text; and thus the law of written as well as of
lestimonial evidence became the creation of judicial decisions, not of
legislative acts. It is, however, casier to trace its origin with tolerable
248
INTRODUCTORY REPORT TO
certainty than, with any probability, to account for some of the extraordi-
nary features which distinguish it. There is such a moral beauty in truth,
it is so necessary to us in all our intercourse with each other, that we have
been endowed by our beneficent Creator with a love for it, which, if not
innate, is necessarily produced by the circumstances in which he has
placed us(a). Man never swerves from truth without some temptation,
some real or imaginary good, that he promises himself from the falsehood.
Doubt even on matters of little moment, is an uneasy sensation: and there
is a corresponding satisfaction in that state of the mind which results from
a conviction of truth; so that, as in the ordinary affairs of life, no one makes
an assertion of fact, but with the intent of producing belief; so no one
hears it without a desire, sometimes imperceptible and involuntary, to
be convinced of its truth or falsehood. But this conviction can only be
produced by evidence. As long, therefore, as he is deprived of any
evidence which is known or suspected to exist, so long will the uneasy
state of doubt, in a greater or less degree, continue. If this be true in
relation to matters where neither interest nor duty, but a mere love of
truth, call upon us to decide; how much more strongly will the desire
be felt when life or fortune depends on the correctness of the decision.
Yet it is precisely in cases where this longing after truth should be grati-
fied, that is to say, in litigated questions, that the evidence by which it
is to be ascertained is most restricted. Every where else, all sources,
even the most suspicious, are examined; he who is to judge relying on
his own power to discriminate; here alone he is taught to distrust that
power, to reject all evidence that may possibly lead him astray, and
where he cannot be guided by the full blaze of the noonday sun, to pre-
fer utter darkness to the twilight, in which he might have discovered his
path. To trace this leading feature in our law of evidence to its original
causes, would be rather a curious disquisition than one leading to im-
portant practical results. It most probably is derived to us from the
civil and canon law, where this principle is carried to a most extrava-
gant length; and where the secret examination of witnesses by judges
unacquainted with the circumstances of the case, made the risk of de-
ception very great; where there was no confrontation, no personal
cross-examination, no publicity, and where the parties themselves were
not allowed to be present, detection was rendered so difficult, that it af-
forded a plausible pretext for absolute exclusion in all suspicious cases.
The compass of this report will only admit of a reference to such re-
strictions as now exist, and a notice of those which it has been deemed
necessary to retain or to abrogate, with the reasons by which the alter-
ations are supported. These will be developed as we proceed with the
details of the system.
This code begins, as those which preceded it have done, by
an Introductory Title, laying down rules and making explanations
to avoid circumlocution, and to give the perspicuity necessary to
a full understanding of the subsequent provisions. Two of the ar-
ticles are of a different character, and demand particular notice. They
are intended to check the legislation of the courts, and to provide for
the progressive amelioration of the code by the General Assembly, the
only legitimate power for that purpose; while the right of pointing out
defects, and suggesting improvements, is conferred on the judges. As the
law formerly stood, the whole law of evidence, with very few excep
(a) In primis, hominis est propria VERI inquisitio atque investigatio.-Cicero.
the code of evidence.
249
tions, was, as we have seen, the work of the court, over which the legis-
lature very rarely exercised even a corrective power; more frequently
the courts corrected the statutory provisions; and by their rules of con-
struction, for enlarging and restricting the operation of the written law,
assumed and exercised, by whatever name it may be called, a legisla-
tive power.
As this is a part, nay the very foundation of the common
law, the observation is not intended as a reproach to the judiciary of
the country from whence that law is derived. But it cannot be too often
repeated, that in our constitution (a) it is not only affirmatively declared,
that there shall be three separate branches of government-executive,
legislative and judiciary; but negatively, that the duties of no two of
these branches shall be exercised by the same persons. Every exer-
cise of legislative power by the judiciary is, in this state, unconstitu-
tional, and it is the duty of the legislature to check it. But as all human
works are attended with a greater or less degree of imperfection, it must
happen that the operation of laws will be found to work injustice; either
by embracing, under general expressions, cases not intended to come
within them, or, by a too restricted phraseology, not providing for other
cases which it was their evident object to include. These defects in
laws gave rise to the rules of construction before alluded to, by one of
which the court were directed to place themselves in the situation of
the legislature(b), to inquire whether, if the case before them had pre-
sented itself to the mind of the lawgiver, he would have extended or
restricted the words of his law so as to provide for it and others of a
similar nature. This is called consulting the spirit of the statute; and
the rule, as I have stated it, is every day referred to and received in
our courts. While it is evident that this is the exercise of legislative
power, inasmuch as it extends or restricts the operation of a statute, it
cannot be denied that the defects of all laws are best discovered in their
operation, and that, as to all those which relate to jurisprudence, the
judges are the persons best qualified to point them out, although, by
our institutions, they are not authorized to provide the remedy.
The object of the two articles now under consideration is to secure
the advantages to be derived from the experience and wisdom of the judges
in the suggestion of defects, while the remedy is reserved to the legis-
lature, the only power to which it can consistently with the constitu-
tion be referred. The first of these articles relates to cases in which
any positive provision of the code, for the admission or exclusion of
evidence, is found to operate improperly, either to the prejudice of the
accused, or the ends of public justice in criminal proceedings, or to the
injury of any party in a civil suit. In every such case the court is di-
rected to make an accurate report of the same to the legislature, with
the reasons for thinking the law imperfect or unjust in its operation.
Should the general assembly coincide in opinion with the court, the
proper amendment will be made to the code under its appropriate.
(a) Art. 1, § 1. The powers of government of the state of Louisiana shall be divided into
three distinct departments, and each of them shall be confided to a separate body of magis-
tracy, to wit-those which are legislative, to one-those which are executive, to another-
and those which are judiciary, to another.
§ 2. No person or collection of persons, being one of those departments, shall exercise
any power properly belonging to either of the others, except in the instances hereinafter ex-
pressly directed or permitted.-Constitution of the state of Louisiana.
(b) Plowden, 469.
2 G
250
INTRODUCTORY REPORT TO
head; and, instead of a judicial decision of doubtful authority, obliga-
tory or not on their successors, or even on themselves, as they shall
think fit, and only to be known through voluminous and costly reports,
we shall have positive law, easily understood, to be found in in its pro-
per place, comprised in a few lines, and binding on the courts as well as
the community. If, in consequence of such imperfection, the accused
shall have been acquitted, judgment in his favour must be entered without
waiting for any further legislative proceedings, for it would be unjust to
subject an individual to the vexation of a second trial for a defect in the
law, even if the amendment required, should be one that could not
come within the description of a retro-active law. But if the conse-
quence was an unjust conviction, or verdict in a civil suit, it is directed
that no judgment shall be pronounced until the end of the session
after the report shall have been made; when, if the provision is altered,
new trials shall in both cases be ordered. If no change is made, it is
evidence the legislature do not coincide in opinion with the court, and do
not think the operation of their law improper or unjust; and as theirs is
the supreme will, the courts must carry it into execution.
The first of these two articles having thus provided for the recon-
sideration and amendment of the code, in such provisions as seem unjust
or defective in their operation, the second, in like manner, gives the
remedy for omissions. In all cases where legislative enactments, or
former decisions, gave no rule on the subject of the admission or exclu-
sion of evidence, the courts necessarily, as has been observed, supplied
the omission. They were obliged to admit or reject the evidence
offered, and, having no legislation provided, were forced to decide ac-
cording to their discretion, without one. After the adoption of this
article, such an anomaly will no longer exist in our law. The legisla-
tor and the judge will each perform his proper duties, and no excuse
will exist for the one to usurp, or the other to neglect them; for in every
case where evidence is offered, and no rule is provided to direct the
judge whether to admit or exclude it, legal authority is given him to do
that which is now done without it; and in that case alone the rule, on
which some animadversions have been made, is sanctioned, and the
judge is directed to suppose himself in the place of the legislator, and
to ask what would probably be his opinion if the case had been presented
to him, and to decide accordingly; but to make report of the case to
the legislature in the manner required by the preceding article, who
will in like manner, give or refuse their sanction to the principle
adopted by the court, and insert the affirmative or negative provision
in the code. Whatever the legislature do in this last case, will not af
fect the decision if in a civil suit; the ends of justice require that the
delay, uncertainty and intrigue, incident to the revision by the legisla-
ture of an adjudged case should be avoided. The court decides the case
before them, but makes no rule for future cases; that is left to the legis-
lature, whose proper province it is. But if the decision takes place in a
criminal cause, and in consequence of the admission or rejection of
evidence, not directed by any law, the accused shall be convicted, it is
clear that his conviction will have taken place under an ex post facto
rule, and is, therefore, illegal. The article consequently provides, that,
in such case, judgment shall be arrested and the defendant discharged.
These provisions are deemed to be of the highest importance. They
are new, and the attention of the general assembly is respectfully called
THE CODE OF EVIDENCE.
251
to a close consideration of them. They offer, it is confidently believed, a
complete answer to the objection that has been raised to a written code,
from its rigidity, or what has been, by a celebrated jurisconsult, called
its want of malleability. It cannot, indeed, be worked into any kind.
of shape that the discretion of a judge, well or ill directed, may deem
necessary: but, by this means, it may be accommodated to the changes
which take place in society, and adapted to its wants as they arise, and
this more effectually, more constitutionally, and equitably, than by the
legislation of decrees; more effectually, because the sanction of positive
law will not only give it a legitimate, instead of a doubtful authority,
but because, being promulgated as a law, it will be universally known;
being concise, it will be easily understood, and a knowledge of its pro-
visions may be acquired without expense; more constitutionally, because
it will emanate from the proper department of government; and its
superior equity must be apparent, when we consider that, in the one case,
the rule is made and applied to an existing case, in the other, it has no
force until after its enactment and promulgation. This most valuable
and simple improvement in legislation was recommended in a former
report; and the greatest confidence is felt in its efficiency, because,
among the number of lawyers and statesmen to whom it has been pro-
posed, not one was to be found who raised any other objection, than
that it was a novelty-a characteristic necessarily attached to every im-
provement; while, to a very large majority of them, it appeared to
promise the most important results.
The profound feeling which the reporter has, that the code he pro-
poses must contain many errors, and that material omissions may be
discovered when it goes into operation, induces him to urge the adop-
tion of these two articles with the greater earnestness.
The facility
they offer of discovering these errors and imperfections and bringing
them to the consideration of the legislature, and the ease with which
they can be effectually amended, cannot but lessen the reluctance he
would have to propose any thing of which the correction would be at-
tended with greater difficulty. He may be allowed, perhaps, to suggest
another argument for their adoption, founded on a feeling different from,
but not inconsistent with, that which he has just expressed. Conscious
that there must be many imperfections in the work, he yet feels a con-
fidence that it is founded on true principles, and that, from the manner
in which they are reduced to precept, the general effect cannot but be
eminently useful, with the safeguard of these provisions for the gradual
perfection of the system. Therefore, the general assembly incur no
risk in their adoption. Parts, of which the utility does not seem per-
fectly apparent, may therefore safely be retained, until their operation
is seen: that operation cannot be materially injurious, even if these parts
are bad. The evil is instantly perceived, and a check is provided for
their operation on the first case in which they are discovered.
After these introductory articles, we come to the body of the work.
Evidence is defined to be that which brings, or contributes to bring,
the mind to a just conviction of the truth or falsehood of the fact asserted
or denied. Because, in weak minds, conviction may be produced, by
that which, addressed to an understanding of common force, would
create doubt or conjecture merely; it became necessary to qualify by
the epithet just, the nature of the conviction to be produced. So far
as respects mere speculative opinion, there can be no danger in leaving
252
INTRODUCTORY Report to
the determination of what may be termed just to each individual's per-
ception of right and wrong; but as applied to the determination of
litigated rights, another qualification was necessarily introduced, and
under the denomination LEGAL EVIDENCE, that alone, which is declared
by law to be good evidence, forms the subject of the code.
If evidence may, according to the definition, produce, or contribute
only to produce, conviction, it must in relation to its effects have dif
ferent degrees of force. These degrees, producing as many different
kinds of evidence, are, under this head, restricted to three, ascend-
ing from that created by mere induction, to that which is, by law,
directed to have the force of complete proof; PRESUMPTIVE, which,
by establishing one fact, renders the existence of another proba-
ble, or, in some cases, certain; DIRECT, which, if true, establishes
the fact in question; and CONCLUSIVE, which, in special cases, is de-
clared to admit of no contradictory evidence.
Considered in relation to the source from whence it is derived, evi-
dence is again of two kinds: first, that which the judge derives from his
own knowledge:--secondly, that which is offered to him from other
sources, and this last is again composed of TESTIMONIAL, SCRIptory,
and SUBSTANTIVE evidence.
After these divisions, necessary for the order of the work, it pro-
ceeds with a more full explanation of the different kinds into which it
is distributed, and an enumeration of the rules applicable to each.
Beginning with the division arising from the source whence the
evidence is derived, a short title declares in what cases the judge
may act from his own knowledge of the fact on which he is to decide,
and in what other cases that knowledge is to be produced as evidence
in the cause. In the first case it is provided, that no judge can act
merely on his own knowledge of the facts, excepting in those cases in
which he is expressly authorized so to do by law. Those cases it
is the province of the Civil and Criminal Codes, and their respective
systems of procedure, to provide for. Instances, to elucidate the arti-
cle, are given in the powers vested in the judge to pronounce on the
authenticity of a record, in the right given him to commit for an offence,
to remove for a disturbance in court, and to employ the military in
aid of the civil power. But where the judge has knowledge of a ma-
terial fact, in any case not so specially provided for, he is to be exam-
ined in the same manner as any other witness; and if he is the sole
judge of the court, the judge of the adjoining district is to try the
cause, in the manner provided for where the judge is interested. Ju-
rors who are acquainted with any material fact must, in all cases, be
examined to give evidence to their fellows. In this title, the law is
not materially altered. It is rendered more definite, and the sanction
of written law is given to that which is now, in some degree, founded
in loose practice.
The next division of evidence, derived from extraneous sources, is
in itself more important, and, in this code, is especially so, because
of the changes which it proposes in our present system. The first
head, that of Testimonial Evidence, is the one in which these changes.
are of most consequence, and, in the opinion of the reporter, most re-
quired. They, however, repose on very simple principles, or, to
speak more precisely, on a single principle, and that one drawn from
the very definition of evidence.
THE CODE OF EVIDENCE.
253
The organization of courts, the enumeration of rights, the means of
asserting, with the denunciation of penalties for infringing them, and
the rules of procedure, are only preparatory steps to the trial which,
in itself, is but the examination of evidence. Ultimately, then, the
whole machinery of jurisprudence, in all its branches, is contrived for
the purpose of enabling the judging power to determine on the truth
or falsehood of every litigated proposition. This to be done by hear-
ing and examining evidence; that is to say, hearing and examining
every thing that will contribute to bring the mind to the determination
required. If we refuse to hear what will, in any degree, produce this
effect, we must determine on imperfect evidence; and in proportion
to the importance of the matter thus refused to be heard, must evident-
ly be the chance of making an incorrect rather than a just determination.
But, as in morals, we are forbidden to do evil that good may come of
it, so in legislation, we should refrain from doing that kind of good
which may produce more than its equivalent in evil. The desirable
end to be attained by the admission of every species of evidence, may
be more than counterbalanced, in some instances, by the evil attend-
ing it; sometimes, in the shape of inconvenience and expense insepa-
rable from its procurement; sometimes, from the danger of error arising
from the the deceptive nature of the evidence itself. The great art is
to weigh these difficulties, and in those cases where they are most
likely to preponderate, but in no others, to exclude the evidence.
""
Before we enter into an examination of the provisions of the code
now presented, it will be necessary to examine those of our present
law. On the subject of evidence we have several different bodies of
law to consult one for civil cases, a second for a class of offences
created under a particular statute, and a third for all other offences.
For the first, we must consult the civil code; for the second, the
common law of England; for the third, the laws of Spain(a). On
the subject of exclusion, that now under consideration, all these sys-
tems materially differ, and all of them are more or less uncertain in
their provisions. By the civil code, the exclusions are, interest, rela-
tionship in the ascending or descending line, connexion in marriage,
and the very vague description of "those whom the law deems infa-
mous.' It also forbids the examination of a counsellor or attorney in
order to obtain a discovery of what has been confided to him by his
client; but somewhat strangely, considering that the Catholic is the
prevalent religion in the country, omits to provide for the inviolability
of religious confession. These are the only general rules, relating to
testimonial evidence in civil cases, that are provided by statute. For
the exclusions in those criminal cases which are punishable under the
statute of 1805, we must refer to the common law of England. To
enumerate them, and note the exceptions with accuracy, would be a
difficult, and as far as the ability and research of the reporter is con-
cerned, an impracticable task; and without any endeavour to avoid the
reproach of ignorance or want of diligence on the subject, he may venture
to assert, that it has never yet been satisfactorily performed, as is manifest
from the numerous treatises on the law of evidence which have appeared,
become obsolete, and are replaced by others, themselves to become an-
tiquated and laid aside whenever the changing system of decisions
(a) See Introductory Reports, p. 60, et seq. and p. 157, in the note, and De Armas's case,
10 Martin's Reports.
254
INTRODUCTORY REPORT TO
establishes new rules or creates exceptions to those which were in like
manner previously established. Fortunately, nothing on this occasion
is required more than a general outline, upon which to mark the chan-
ges that are recommended by the system now presented.
The circumstances which are generally understood to cause exclusion
by the common law of England are, interest, connexion in marriage,
infamy, incredulity as to a future state of rewards and punishments, the
relation of counsellor or attorney to one of the parties, and conviction
for an infamous crime. To the laws of Spain, as has been said, and,
as is thought, satisfactorily proved in the Introductory Report to the
System of Penal Law(a), we must have recourse, in civil cases,
to discover what is meant by the description in the code of "those
whom the law deems infamous; and in criminal cases, to direct us in
prosecutions for all those acts which may be considered offences under
the unrepealed Spanish law, and all those which are created offences by
acts subsequent to the year 1805. The list of exclusions under these
last mentioned laws, is filled to a most enormous length with every cir-
cumstance that can create the slightest suspicion of partiality, prejudice,
or a disposition to falsehood. The principle of these laws seems to be,
that the weakest inducement to utter falsehood is stronger than the great-
est inducement to tell the truth; that all those who are counted infamous
ought never to be believed; and that a usurer, a comedian, a slanderer,
and all the others, who, by a most extraordinary classification, are involv-
ed in the stigma of infamy, as well as those convicted of crimes, ought
on no occasion, not even for saving the life of the innocent, or the more
favourite object of taking that of the guilty, to be heard. The intimate
friend, the frequent guest, the near relation, all of whom were most
likely to be acquainted with the circumstances and character of the parties,
or accused, as well as the avowed enemy, were, or rather, as this is now
our law, are, legally, in the cases above mentioned, excluded.
Without troubling the general assembly with a repetition of the argu-
ments to prove this assertion, I again refer to that Introductory Report,
only observing here, that it is no answer to say, that those laws do not
exist, because the judges have not yet thought proper to act upon them.
The question is not, what has, but what can be done: not what good
judges have refrained from doing, from their own sense of right, not
from the restriction of law-but what bad men might do in evil times,
under the sanction of bad laws; or good men, under the impression
that they are bound to execute them.
Omitting the unnecessary task of examining, in detail, the list of ex-
clusions under the Spanish law, and showing their absurdity and injus-
tice, I proceed, at once, to the examination of those which are acknow-
ledged and enforced as part of the law of the state.
The first of these disqualifying circumstances, declared by the code
to prevail in civil cases, and making a prominent feature in the common.
law adopted in criminal cases by our statute, is interest, which is con-
strued to mean an eventual gain or loss that may be estimated in money,
by the decision of a cause in which the testimony is produced. By the
code now offered, interest shall no longer disqualify, but may be proved
in order to lessen, in proportion to its magnitude and to the other cir-
cumstances of the case, the credit that may be given to the witness.
(a) Pages 63, 64, et seq., and p. 157, in the note.
THE CODE OF EVIDENCE.
255
This important change demands a full explanation of the reasons for
proposing it. For this purpose it will be necessary to revert once more
to the nature and effect of all exclusions of testimony. These have been
shown to be injurious to the great object of judicial investigation, the
discovery of the truth. Prima facie then there ought to be no exclu-
sion; but, as has been observed, there may be evils attending the ad-
mission of certain evidence, which may be greater than any good such
evidence could produce in elucidating the truth. To exclude any species.
of evidence, therefore, it must be shown that such attendant evil pre-
dominates. This evil can only be inconvenience and expense in pro-
curing the testimony greater than the advantage to be derived from its
admission; or the probability that, if admitted, it will tend rather to
mislead than to enlighten the judge. These probabilities must be
weighed whenever we come to consider the propriety or rather the
necessity, for that ought to be evident, of creating a rule excluding tes-
timony of any one description.
Now let us apply these rules to that which declares an interested
witness inadmissible. This can only be found on the following suppo-
sitions: first, that pecuniary interest will be sufficient to induce the wit-
ness to incur the inevitable embarrassment and difficulty of sustaining
an untruth under the searching trial of a rigorous cross-examination;
attended by the liability, too, of being detected, and of the consequent
punishment and infamy attending a conviction for perjury, in order to
have the chance of the advantage he may promise himself from a judg-
ment to be obtained by his falsehood; for let it be observed, that, if on
the one hand, there is no certainty of punishment, conviction or infamy,
there is, on the other, no certainty of securing the advantage that
prompts him to encounter the risk. Secondly, it must be supposed that
the falsehood, thus asserted, will be believed by the judges of the fact.
If not believed, the testimony cannot mislead; and we may lay down as
a rule which admits of very few exceptions, that with the aids of cross-
examination, publicity, and the right of producing counter testimony,
the chances are greatly in favour of truth against deception. On this
head, too, we must not forget that the judge is on his guard against giv-
ing too implicit faith to the witness, because he is aware of the bias
which interest would naturally create. The argument supposes the in-
terest to be known, for, if not known, it cannot exclude. Knowing the
interest, he will not only be more inclined, but better enabled, to test
the truth of the testimony by a rigorous investigation; and what is of
more importance, he will be enabled to judge from the nature and amount
of the interest, contrasted with the character of the witness, and other
circumstances, what effect it will probably have on the testimony.
These considerations must, therefore, tend to show, that even in the
cases, and it is not denied that they may exist, where interest may in-
duce a departure from the truth, the fear of its misleading the judge is
greatly exaggerated by those who make it a ground for utter exclusion.
The two assumptions, then, necessary to support the argument, to wit,
that interest will always, or even generally, induce the witness to en-
counter the difficulties and dangers of asserting a falsehood, and that if it
should have this operation, the falsehood will most probably be believed,
have both been shown to be groundless; and even on this preliminary state-
ment, the disadvantages of shutting out the testimony of an interested
witness must be apparent: but many other considerations must be brought
256
INTRODUCTORY REPORT TO
into the account before we strike the balance of good or evil attending
its admission. A most profound writer on this subject(a) has argued,
and with great force, that so far from leading to deception, the testimony
of an interested witness will, in many cases, bring out the truth by the
very attempts which he makes to conceal it. No more falsehood, he
contends, will be uttered than the witness thinks necessary to obtain
the object he has in view: from these partial disclosures of truth, infor-
mation of importance may be derived to corroborate or contradict other
evidence; not so much will be uttered as is necessary, if it be highly
improbable, or may, from other circumstances, create great risk of de-
tection. Truth must supply all these intervals, and truth, from the lips
of an interested witness, is as valuable as if it were derived from a purer
source; but if he dare not tell the falsehood, because it is too dangerous
or too easy of detection, and will not tell the truth, because it defeats
his interest, he must have recourse to silence or evasion; and either of
these expedients are as sure indications of falsehood, in most instances, ast
a confession of it would be. Therefore, whether the interested witness
declare the truth or utter a falsehood, or recur to evasion or silence,
his evidence will more probably lead to a just than an erroneous decision.
False testimony is more difficult to frame, and is more easily detected,
than those not conversant with judicial proceedings might imagine. If
the witness were at liberty, in secret and at his leisure, to frame his
own story, and state only such circumstances as his imagination might
supply in a detailed account of all that he thought necessary, without
the fear of confrontation, cross-examination, and publicity, he would
have nothing but his invention to task, and might, from his own stores,
or the suggestion of parties, frame a consistent tale that might impose
on the judge. But, fortunately, this is not the case; he knows, that the
strictest scrutiny awaits every allegation that he shall make; that his
words, and even his silence, will be the subject of the severest animad-
version; that his very looks will not escape the attention of the practised
cross-questioner; and that, during his examination, the gaze of a
hundred eyes will be upon him, and he cannot but fear that some one
will start forth from the crowd to detect his falsehood. All this he must
anticipate; and under these apprehensions it will require more ready in-
vention, more self-possession, and more courage than falls to the share
of ordinary men to persevere in a feigned statement, and render it so
consistent as to give it the semblance of truth; so that, if these well-
founded fears do not deter him from his purpose, they will at least, for
the most part, render him incapable of carrying it successfully into
effect. The part of a false witness is more difficult to act than is generally
supposed; and though many rashly and wickedly engage in it from a false
confidence in their ability, yet very few can sustain it to the end, and
through the great ordeals of cross-examination and publicity.
All this is on the supposition that pecuniary interest will always in-
duce a witness to depart from the truth; but when from the whole num-
ber which compose this class, we deduct those to whom the interest is
too trifling to be an object compared to their fortune and situation in
life-those who, even under the influence of a strong interest, would
be restrained by the stronger motives of religion or morality-those
who would be deterred by the fear of shame or of punishment-
(a) Bentham, Rationale of Judicial Evidence.
THE CODE OF EVIDENCE.
257
who, without either of these restraints, find their hearts to fail them from
the difficulty of performing their tasks: when we deduct all these from the
mass of interested witnesses, we shall have very few left willing to sustain
the character of perjured ones; and of those few, not many who can do
it with any prospect of success. But under the general words of the
rule, all these are excluded-all kinds of pecuniary interest disqualifies.
He who is worth millions of dollars, cannot be a witness if he is to gain
or lose a single dollar of those millions, by the event of the cause: the
man of the highest sense of honour, or the most venerated for his holy
life, is equally excluded, if the eventual gain or loss is equivalent only
to the hundredth part of those sums which he daily distributes in charity;
and even in cases where detection is highly probable, the most timid is,
by the rule, supposed ready to encounter the risk of punishment-and
the most honourable, to take his chance of infamy, for the uncertain
hope of an insignificant gain. Detection is presumed to be impossible, and
the credulity of judges and jurors to be so great, that a false tale must,
if it be allowed to reach their ears, produce instant conviction that it is
true. They forget, who insist on this rule, how difficult it is even for
truth to produce its proper effect, although attended with all the advan-
tages it naturally brings with it; and they argue as if falsehood alone
could charm the understanding and lay suspicion asleep.
One
The question then is this, whether on account of the danger of being
deceived by the few who are willing to assume the character of perjured
witnesses, a danger diminished by the many powerful means we have
of detecting their falsehood, it would be wise to deprive ourselves of
the testimony of all those infinitely more numerous classes of interested
witnesses, from whom we may expect nothing but truth? For this is
the only alternative. The law can draw no line between interests of
different amounts, or between interested witnesses of different charac-
ters-it must admit or exclude the whole. Which shall it do?
consideration, if there were no other, would seem to resolve the ques-
tion. Exclusion is, in many cases, a certain evil-admission only a
problematical one. Where the incompetent witness, whether from in-
terest or any other cause, is the only witness, certain injustice results
from a refusal to hear him. Listen to him, and, first, it is not certain.
that his interest or any other cause will induce him to depart from the
truth; and, secondly, if he do, it is not certain that you will believe.
him. If he is not the only witness, the other testimony will furnish
additional means of detecting any false statement that may have been
prompted by his interest.
I have said, that the law cannot distinguish particular cases, but must
enact a general rule. This is obvious; and it is equally so, that the
judges of the fact can. Let them hear the witness. From all the cir-
cumstances which they can collect, and which the legislator cannot, they
can tell, with tolerable certainty, in which class of interested witnesses
he comes-those who may be believed, or those who may not.
This
they cannot do without hearing him; and when they have done so, and
have even assigned him to the latter class, they do more than destroy
the ill effect of his testimony, because they draw from it all the infor-
mation which, as we have scen, may be derived even from false evidence,
and run no risk of crediting that which they discover to be inconsistent
with truth. They can do, then, effectually, that which the legislative
rule does imperfectly-they can let in the interested testimony which
2 H
258
INTRODUCTORY REPORT TO
is worthy of credit, and exclude that which is not. Why does this rule
exclude all interested testimony? Because a part only is unworthy of
credit. Would wise legislators be guilty of this absurdity, and worse
than absurdity, in many cases this injustice and cruelty, if it were poss-
ible for them to make the necessary distinction? Certainly they
would not. Why not then commit this task to those who can ?
Why not say to those to whom they delegate the decision of facts,
"pecuniary interest has, in some cases, a seductive influence, injurious
to the discovery of truth; in many others, it will not be felt. We
can draw no line of demarcation between the cases. We cannot
make the exclusion depend on the magnitude of the interest, because
that is relative. Fix the minimum where we may, there are men
on whom the smallest sum would have an improper influence; and
others on whom the largest would have none. Wherever we draw the
line, we shall admit suspicious evidence and exclude that which is un-
exceptionable. To be just, a separate rule must be made for every wit-
ness, because upon no two will the same amount of interest have the same
effect. It is your privilege to determine what degree of credit the wit-
ness, under all the circumstances, favourable or unfavourable, in which
he is presented to you, is entitled to, because it is your duty to deter-
mine according to your conviction of the truth. In prescribing the
duty, we will not restrain you from using the means necessary to per-
form it. You who see the looks and observe the demeanour of the
witness, as well as hear what he says; you who can inquire into his cir-
cumstances and character; you who can judge how far his testimony is
corroborated or contradicted by other evidence; you will be better
qualified to determine whether the interest be so great as to render him
unworthy of belief, than we are, who have none of these means of form-
ing a correct judgment." This would be the language of reason. In-
stead of it, what is, in effect, that which is addressed to them?
true that you are delegated to decide litigated questions of fact. The
greatest confidence must necessarily be reposed as well in your integrity
as your judgment, in the general performance of this duty; but there
is one point on which we dare not trust your discernment. We will
not permit you to hear what an interested witness will say.
We are
sure, that under all circumstances that may counteract the bias of his in-
terest, and however small that interest may be, we are sure that it will
induce him to utter a falsehood; and we are sure that, in spite of all the
means we give you to detect it, we are sure, that however improbable
it may be, you will believe it. Therefore, whenever a witness is pre-
sented to you, ask him first, whether he will gain or lose a cent by the
decision of the cause; if he answer truly, that he will-be sure that
he will answer falsely on every other point on which you may examine
him. It is useless to inquire, what proportion the interest bears to his
income; it is useless to ask, what is his character for veracity or re-
ligion. The highest standing in society, the best reputation, the largest
fortune, are nothing compared to this all-prevailing interest of a dollar,
or a cent. Do not give yourselves the trouble to inquire, whether the
circumstances do not show a case in which falsehood would meet with
certain detection. The fear of punishment-the fear of shame-the re-
straints of religion-all give way before this irresistible interest of a
dollar, or a cent. No matter if the fortune, the reputation, or the life
of a citizen depend on the question; it is better they should all be lost,
than that you should listen to an interested witness. You may hear the
"It is
THE CODE OF EVIDENCE.
259
sworn enemy of the party. You may hear his brother, or his most
intimate friend. We can trust you with the difficult task of determin-
ing what effect all the passions of the mind can have in giving a colour
of truth or falsehood to testimony. But interest, all-powerful interest,
has no shades of difference—a cent will influence the richest banker in
the same degree that a dollar will a beggar. Wherever this appears,
you must exclude it-without pity for the ruin it occasions-with-
out remorse for the death it inflicts!" This is the true meaning of
the short precept of the English law, and the equivalent provision of our
civil code. There is not a word of exaggeration in the comment I have
given; and after considering the subject in all its bearings, who can
hesitate on the question, whether interest ought not rather to be con-
sidered an objection to the credit than to the competency of a witness?
In the first case, you can appreciate the bias at nearly its true value,
according to the circumstances on which it has to operate; in the last,
the strongest and the weakest motives are considered as having equal
force.
The truth of this reasoning is evident from the efforts which, of late
years, the courts have been making to get rid of the shackles with which
they have been bound by their own decisions; unable or unwilling to
declare the rule unwise and unjust, they have relaxed it in some cases,
but retained it in others, which, for the same reason, ought to have
formed an exception, and by hearing interested witnesses in some cases,
and rejecting them in others, they have not only abandoned the pro-
priety of the rule, but have established no uniform principle on which
another can be founded. Exceptions, the maxim asserts, prove the
rule. They may prove the existence of a rule, but never that it is a
proper one, unless there is some reason applying to the case excepted,
which does not apply to the rule. Where the reason for taking a case out
of the operation of a general rule is a good one, and applies with equal
force to all that are left within it, there can be no better proof that the
rule itself is bad. Let us examine the exceptions in this view; pre-
mising, however, that in civil cases there can, in our state, legally be no
exception. The legislative will is clearly and imperatively expressed:
those who are interested—no matter in what degree, no matter whom
the witnesses may be-are all excluded. No enlarging on restrictory
construction can here apply. It cannot, under any pretence, be said that
the spirit of the law does not apply to any of the cases excepted; while
it is acknowledged that they are all embraced by its words: for the
spirit of the law, as well as its words, exclude all interests. Yet our
courts in civil cases, without any legislative authority, admit all the ex-
ceptions contained in the English law. They admit them legally, in
all criminal cases, under the act of 1805; and they admit them again,
without authority, in the other offences created by legislative statutes.
Allowing the exceptions thus generally, with and without express au-
thority, the propriety, or a supposed necessity, must have strongly press-
ed upon them; and therefore, the opinion of the courts has been clearly
expressed against the rule, and in favour of the exception.
The first of those exceptions is the case of a factor in trade, or any
other agent, who makes a sale or a contract for another, on the amount of
which he is to receive a commission. If the sale itself, or the amount
of the sale, be disputed, and a suit be brought to recover the amount,
the factor or agent is a good witness. Yet he is evidently and largely
260
INTRODUCTORY REPORT TO
interested: if the sale be established, he receives five per cent or
one-twentieth part of all that is recovered; if the sale be disaffirmed, he
receives nothing. Indeed, the interest in those cases has never been
disputed, but he is admitted on the ground of an alleged necessity. It
is proper to examine here in what sense this word is used.
It is em-
ployed by, I believe, all the judges who have sanctioned the doctrine,
and can mean nothing more than that if the witness were not heard,
there would be a risk that some part of the truth would not appear;
for it must be observed, that no inquiry is made previous to the ex-
amination of the factor, whether the sale could not be established by
other evidence. There may have been twenty witnesses present when
it was made, yet the factor is examined: not surely for want of other
testimony. Why then? The only answer that can be given must be,
because he is considered as a good witness; because, although largely
interested, the probability was in favour of his adherence to the truth;
or that, if he swerved from it, his falsehood would be detected. The
necessity in this case, then, differs in nothing from that which takes
place in every litigated question. The moral necessity of giving to
those who are to determine the truth all the means necessary to ascer-
tain it, and if it exist in all others where an interested witness is pro-
duced, then the deduction is irresistible, that in all other cases the in-
terested witness ought to be examined, and that the exception should
take the place of the rule. That the factor is admitted as a witness, not
from the defect of other testimony, is evident from the reason that has
been given, that no previous inquiry is ever made on that subject; con-
sequently, he is admitted, not because there is no other proof-but, let
us suppose no other evidence to be in existence, he is then, accord-
ing to the language of the exception, admitted from necessity: then it
follows, that it is better for the ends of justice to take interested testi-
mony than no testimony. But if it be calculated to mislead, why
should it be heard in this case and refused in all others? But experi-
ence has shown, that there is no danger: the evident utility of the ex-
ception, which has induced learned and prudent judges to go beyond
the bounds prescribed by their constitutional functions in order to
establish it, show, that there is no danger-show, that it is useful and ne-
cessary in this case; and the reasoning, from the closest analogy, must
convince us that it is so in all others.
In every case, either the interested witness is the only one to
establish the fact, or he is not. If he be the only witness, then he
may be admitted, according to the reason on which the exception is
said to be founded, from the necessity in all cases whatever, as well as
in that of the agent. If he is not the only witness, then, neither in
the case of the rule nor of the exception, will there be any danger in
admitting him; for the other evidence will give the means of detecting
his mis-statements; or the knowledge of its existence, will deter him
from making them. Nor will the alleged necessity exist. Thus, every
reason that can be advanced in favour of admitting the exception, ap-
plies with equal force to the abolition of the rule.
The second exception to the rule, and under the same plea of ne-
cessity, is that of a servant, who, in the way of trade, is employed to
deliver goods to a purchaser; or a clerk, who is employed to pay
money to a creditor. Such servant, in a suit against the purchaser, is
a good witness to prove the delivery, and the clerk to prove the receipt
THE CODE OF EVIDENCE.
261
of the money; that is to say, to prove that they did not themselves
embezzle the property (a). All the reasoning employed in the pre-
ceding case applies with equal, if not greater, force to this; for here
he is prompted to charge the defendant, not only to save himself from
loss, but to preserve his reputation. Yet, in other cases in which the
necessity would seem equally to exist, the rule is enforced, and the
witness is excluded. A master of a vessel is not a competent witness
to prove that there was no deviation in an action on a policy(b). The
driver of a coach is not a good witness in an action against the owner
for injury done by negligently driving. Yet, in these cases, no
one so well as the captain or the driver could know whether there was
deviation or negligence. It is said, indeed, in defence of this distinc-
tion, “that, although the agent is a competent witness to prove that
he acted according to the direction of the principal on the ground of
necessity, and because the principal can never maintain an action against
his agent for acting according to his directions, yet, if the cause depend
upon the question whether the agent has been guilty of some tortuous
act or negligence in the course of executing the orders of the principal,
and in respect of which he would be liable even to the principal if he
failed in the action, the agent is not competent without a release.'
I
give the words of the most approved treatise on evidence here to show
what stuff the reasons, on which these distinctions are founded, is
made of.
""
The agent is a good witness for the principal to prove the payment
of money or the delivery of goods which he himself may have em-
bezzled. Yet he is not a good witness for the owner of the carriage
to show there was no negligence. In both cases, by procuring a ver-
dict for the owner, he exonerates himself from any action. In both
cases, he is perhaps the only witness of the transaction, and the best.
witness in the case of the negligence. One, too, who lays a wager on
the event of the suit, is a good witness(c). Why? Because he
does not come within the rule? Surely not. His interest is appa-
rent. Why then? Another exception is made for his case, and another
reason to support it. The party to the suit has a right to the evidence;
and the witness shall not, by his act, deprive him of it. Now what
right has the party in this case that every other party has not? Has
not every party to every suit a right to the production of the truth?
But the witness, in this case, produces the interest and apparent disa-
bility by his own act! So much stronger the reason for excluding him.
A man must have a strong hostile feeling to a prisoner who lays a wager,
not only that he will be convicted, but that he (the witness) will con-
vict him(d). Here are interest, animosity, and perhaps the worst pass-
ions, all combined; yet he is a good witness, because, say other au-
thorities, the interest accrued after the case(e) had arisen in which he
is called as a witness. But if bare interest disqualifies, then surely it
(a) 2 Espin. 509. 3 Espin. 48.
(c) Skinner's Rep. 586.
(b) Starkie Ev. 1730.
(d) I Strange, 652.
(e) In the strong case of a witness to a will, a good and disinterested witness at the time
of making the will, who becomes interested afterwards, cannot be a witness to prove
the will, and the last intentions of the testator, although accompanied by all the forms of
law, become frustrated! 2 Hayward's Rep. 147. It is not, then, the time at which the
interest accrues justifies the exception. We have seen that the other circumstance, its
being the act of the party, would rather add to, than diminish, the reason for excluding him.
262
INTRODUCTORY REPORT TO
is of no consequence how or when the interest accrued.
The argument
for the general rule is, that the judge of the fact will be more probably
misled than enlightened by hearing an interested witness.
If this were
true, he ought not to hear any interested witness, still less one who to
his interest joins a strong persuasion or prejudice on the side which he
is called to support. But it is not true, and this exception proves it!
The truth is, that the disqualification from interest was found to be so
inconsistent with principle, that inroads have constantly been making
upon it by exceptions, and I refer to the numerous treatises on evidence,
for others, none of them supported by reasons that would not justify
the total abolition of the rule itself.
Another evil attending it, independent of the injury by the exclusion
of evidence, is the uncertainty it has introduced in the law. Cases,
either entirely contradictory to each other, or supported by the most.
flimsy distinctions, give to acute lawyers the means of defeating justice;
and to astute judges that of making the balance turn to the one side or
the other, as their passions or prejudices may prompt, without, in either
case, being liable to the reproach of acting without authority. Abolish
the rule in all cases, and no such possibility can exist. The evidence
will go to the jury, when they are the judges of the fact; to the court
when they are not; in both cases, there will be the check of public opi-
nion, which is either totally lost or greatly weakened when the testi-
mony is suppressed. The reasons for believing or discrediting the
witness will have their full weight, because they will be drawn from the
circumstances in each case. The advantages will not be lost which
arise from the involuntary or necessary admissions of truth, which come
from an interested witness, even in the cases in which he is desirous to
deceive-from his manner-from his hesitation-even from his silence.
The law will be rendered simple on a subject which gives rise now to
numerous discussions, and produce great perplexity. The judge will
no longer have it in his power to admit or exclude, almost at his discre-
tion, every witness who is at all interested.
This result, so important in itself, so easy of execution, and so general
in its operation, is now partially obtained, by a mode which places the
interest of the parties frequently in the hands of the witness, by making
it optional with him to give up or retain his interest, or with the party
to exclude him when he is supposed to be unfavourable by refusing to
exonerate him from a liability. This operation for instantaneously
transforming a bad into a good witness, for rendering a statement cre-
dible, which, if uttered before it was performed, would be unworthy
of being even listened to: this operation is called a release; and, accord-
ing to the circumstances of the case, it must be performed either by the
witness or by the party. Where the interest consists in an emolument
to be gained by the witness by the event of the cause, it is plain that
his own act is required to renounce their advantage. If he has a strong
desire that the party should prevail, and his testimony is material, he
signs the release, his evidence is taken, and the cause is gained. If his
wishes, contrary perhaps to an inconsiderable interest, or a secret in-
terest stronger than the apparent one, should be different, he refuses
the release, and the party, whom he might have saved, loses his fortune,
his reputation, or his life. The witness, then, is the arbiter of his fate;
not by perjury, or other illegal means, but by the exercise of a legal
right, for which he can incur neither punishment nor reproach. Again,
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263
the interest may arise from a liability to some demand which may be
the consequence of a certain decision of the cause. In this case it is
evident that the release must come from the party to whom the witness
must pay or account. If he give the release, the witness is heard; if
he refuse, the testimony is rejected. Here again he becomes the
arbiter. But the whole of this is downright mummery, unworthy of a
place in the jurisprudence of an intelligent people. So far from adding
any thing to the credit of the witness, a release ought nine times in ten
to detract from it; because it must always arise from a stipulation ex-
pressed or understood, that the witness will state to the jury what he
has before stated to the party; and all these contrivances to escape from
the operation of the exclusionary rule, must demonstrate that it is un-
wise and unjust.
Analogous to the extraction of truth from interested witnesses, is
that of learning it from the statements of the parties themselves. To a
certain extent this is permitted by our present law. In the code now
offered it is extended, and alterations are proposed in the manner of
obtaining it.
he
If, on the one hand, the parties are those most strongly tempted to
alter or conceal the truth; on the other, they are those whose know-
ledge of the case best enables them to declare it. These conflicting
considerations have, in the jurisprudence of most nations, produced the
effects that might have been expected from the same source which ex-
cluded the testimony of interested witnesses. A general rule, with
exceptions founded on reasons more or less applicable to the rule itself,
produced a continual struggle between a conviction that the rule was
unjust and the want of courage to avow it, and to break through the
trammels it imposed. In England a party may, by an expensive pro-
ceeding, in another court, obtain answers, on oath, to such questions as
may propose to the adverse party. In France the same power is
given to the party, without the necessity of resorting to another court;
and it is there extended to the judge by what is called the decisory oath,
when the evidence is, by an artificial scale they have established for
graduating it, equally balanced. Here it is given to the party only,
but in the same court. In all these cases there are defects, both of form
and substance. Of form, in that they all require the questions to be
propounded in writing, and answered, with, I believe, the exception
of the decisory oath, in the same manner, without cross-examination,
and not in the presence of any one but the magistrate who attests the
deposition. This is a radical defect. Of substance, in that the right
of interrogation is confined to the opposite party, to the total exclusion,
in our system and that of England, and the partial exclusion in the
French practice, of the judges of the fact. We allow the plaintiff and
defendant in civil cases mutually to interrogate each other by the ex-
hibition of written questions; if these are not categorically answered,
the facts, it is declared, shall be taken to be confessed. This supposes
that a fact must always be stated in the interrogatory, and the affirm-
ance of that fact is to be the consequence of an evasive answer or of
silence with respect to it. This is highly inconvenient to both par-
ties(a); but what is more so, is that the answer is final-no explanation
(a) Suppose an action on a promise, and the plaintiff, wishing to establish, by the oath of
the defendant, that when charged with having made the promise the defendant did not
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INTRODUCTORY REPORT TO
can be required of what is equivocal-no cross interrogatories to test
the truth of what is said, or procure the disclosure of what is omitted:
yet the law permits the respondent to go beyond a mere categorical
affirmation or negative answer; he may state circumstances closely con-
nected with the subject of the interrogatory; and yet on this matter, be
it ever so material or unexpected, the party has no right to question;
with the prior interrogatory and the answer to it, the whole process
stops. In considering this head of evidence, it appeared to me, that if
it were proper to get that of the party, it should be got effectually, and
when we were applying to a source of evidence which is manifestly the
most suspicious, that all the means should be applied to render it full,
correct, and faithful, which were used in other cases. I could see no
reason why any of the precautions, necessary in cases where the wit-
ness is supposed to be impartial, should be omitted. If we hear the
party at all, let us extract from him the whole truth, parts of which
his interest may induce him to conceal: let us, by cross-examination,
detect all the falsities that same interest may induce him to frame; let
us, by the publicity of the examination in the presence of the parties
and the judge, and of that faithful guardian of private rights, the keen
gaze of the public, deter him from the difficult task of swerving from
the truth.
Permit the party to ponder over a written interrogatory, which he
is to answer in the same mode; let him call in the assistance of a learned
adviser to frame his deposition in such a way as to avoid the danger of
perjury on the one hand, or avowals injurious to his interest on the
other; let him attest to this in the presence of a magistrate, who is not
to judge the suit, who does not read the deposition, and who hurries
over the formal words which convert the mere statement into judicial
evidence; manage affairs in this manner, and the result will always be
that which it is found under our practice, that, in most cases, the one
party will not dare to probe the conscience of the other; more especially
when, as it were for the express purpose of tempting him to falsehood,
he is told whatever you say shall be taken for truth, no matter how
improbable it is, if two witnesses cannot be found to contradict, or one
witness corroborated by strong circumstantial evidence, or by written
proof. Surely this is a strange inconsistency in our law. The testi-
mony of a disinterested and impartial witness is left to have what credit
the judges of the fact may, from his character or other circumstances,
be inclined to give him; but the oath of the most suspicious witness,
the party himself, the one most interested to suppress the truth, is di-
rected by law to be conclusive, unless contradicted by two witnesses,
or one witness with strong circumstances, or written proof. And it
seems scarcely a fair answer to say, the party who called for his oppo-
nent's oath knew the consequence of his making an unfavourable an-
swer, and was at liberty either to ask for it or not. The question is not,
deny it, put this interrogatory, Did you, on such an occasion, deny that you made the pro-
mise? and the defendant evades the question or refuses to answer it, what is the conse-
quence? The fact, in the interrogatory is taken to be confessed. But as far as there is
any fact stated, it is that the defendant did deny the debt. It follows, then, that the refusal
to answer, so far from operating as a confession of what the plaintiff wishes to prove, has a
directly contrary effect, for it establishes the fact that he did deny the debt, a fact which,
perhaps, he would not directly have stated on oath.
THE CODE OF EVIDENCE.
265
whether he knew the consequence or did not know it; but, whether the
condition is just, and such as ought to be imposed. The party calling
for the answer shows, by that act, his own belief in the fact which he
states, and his confidence that the other party will acknowledge it. If
disappointed in this, what good reason can be given why he should be
precluded from arguing, that other circumstances in the case, that the
improbability of the testimony, or its inconsistency, should induce the
jury to give it no credit? Why should the jury, who perhaps do not
believe a word the party has declared, be forced to consider it as truth?
The conviction that no good answer can be given to the queries, has
induced the reporter to propose a repeal of the restriction, leaving the
judge of the fact free in this, as in other instances, to decide according
to his belief of the fact.
The reasoning which has been given for the admission of interested
witnesses applies, in a great measure, to that of the parties themselves.
But I have stopped short, in the code which is submitted-and perhaps
I have done wrong in hesitating-I have stopped short of making the
party a witness for himself, except in the case when a piece of scriptory
evidence, unsigned by the party, is produced as presumptive evidence
against him. In this case, the Code gives him the privilege of stating
the circumstance under which it was written, and his intent in writing
it. With this exception, he may only be examined by the opposite
party, by the judge, or by any one of the jurors; the examination must
be under oath, in open court, and subject to cross-examination by the
opposite party.
The innovation, made by the code, in extending the right of examin-
ing a party to the judges of the fact, as well as to the opposite party,
is founded on this reason :-The suitor may decline examining his op-
posite party from one of two very different motives; because he has no
confidence in his integrity; or because he is conscious of the want of
that quality in himself, and fears that the plain tale of his adversary may
carry conviction with it. The change proposed puts it in the power of
the judge of the fact, to do that which the party fears to do, in the last
instance, from a bad motive; while, in the cases where the reasonable
suspicions of the one party prevents his having recourse to the con-
science of the other, the extension of the great correctives of oral in-
terrogation, with its concomitants, cross-examination and publicity,
lessen, almost to zero, the chance of false statements leaving any im-
pression.
Why the party is not allowed to be examined whenever he himself
chooses, is not quite so obviously in conformity with the principles of
the code, which, as has been seen, is to allow no exclusion of any thing
that is calculated to throw light on the subject; and it has been observed,
with much show of reason, the expositions of the parties are what the
judge principally requires. It is to this source of evidence that men,
in the common affairs of life, most resort when they are called on to
decide on any particular fact. They hear the charge, the answer, the re-
ply, the allegations of both parties, with all their circumstances; then
where there is doubt, they look for other proof, compare the whole,
and then decide. Why will you deprive the party of the right he ought
to have, of being heard, of clearing up doubts, and rectifying errors,
which may have been produced by the inattention or design of wit-
nesses, or the ambiguity of other evidence? This objection would have
1
2 I
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great force but for two circumstances, and perhaps has some in despite
of them. For the first, we must recur to another provision in the code,
which requires that all petitions and answers, in civil cases, must be
attested on oath. The second is, that, in most cases, it may be said in
all, where the evidence leaves any doubt, the power given to the judge
and to the other party, to interrogate, will answer the end proposed.
The article requiring all petitions and answers to be exhibited under
oath, was introduced after much reflection, and I ought candidly to
state, in opposition to the advice of some professional friends, for whose
opinions I have the highest respect. They argued against this, as well
as against giving the right of interrogation to the judges of fact, on the
ground, that multiplying oaths made them too common, thereby lessening
their sanctity and force; and that an affidavit to the truth of a petition
would soon become as proverbially insignificant as a custom-house oath.
1. To this it was answered, that oaths came to be lightly considered,
not so much by the frequency of the occasion on which they were exacted,
as from other causes; that among these causes was the above, which this
very provision was intended to correct; that of allowing any allegation
in a judicial proceeding, made by a party, to be considered as a matter
of form, which might be false, and yet attach no blame to the person
who swore they were true; that where pleadings were verbose, tech-
nical, and founded on fictitious forms, the objection would have great
weight, because then the party would generally ill understand the tenor
of the instrument to which he attested-the most scrupulous party could
find it difficult, in the mass of an English bill in chancery, to distin-
guish between the material facts and the formal allegations it contains;
and the ready excuse, "I was told it was a mere matter of form," is al-
ways at hand to satisfy those of an easier conscience.
But in a system
which discards all fictions, where there is no form inconsistent with
truth, which requires facts to be set forth in plain language, as there
is no difficulty in distinguishing the truth, neither is there any excuse
for falsehood; and no more evil need be apprehended, because every
suitor is obliged to attest to his proceedings, than there is from ad-
ministering an oath to every witness. Another reason why oaths are
treated with inattention, is not their frequency, but the mode of ad-
ministering them, the essential part of the ceremony being performed
by the magistrate or clerk, who in a hurried manner, and often unin-
telligibly, repeats the words of the attestation, while the deponent is
not required to utter even a word of assent to the obligation on his con-
science, but signifies it by a gesture, in itself of no meaning. But when,
as is provided in the code, solemnity is added to the form of the
oath, the words of which the deponent is bound to repeat-when he is
reminded that he must submit to cross-examination, and instructed in
the consequences of his departing from truth-it may fairly be pre-
sumed that the additional number of oaths required by this provision.
will not lessen their binding force. This last mentioned precaution is
quite new, and deserves particular consideration. All the attestations,
under oath, to written instruments, as our law now stands, are not only
ex parte evidence, but, in most cases, courts will admit of no counter
proof, much less counter examination; and, in many causes, amend-
iments to such affidavits have been refused. The party, or his counsel,
prepare the declaration with great care; so much of the truth, and no
more, is set forth as they think necessary to attain the object, and even
THE CODE OF EVIDENCE.
267
if an idea inconsistent with the truth is conveyed, the language in which
it may be couched, by its equivocation, secures the party from all fear
of prosecution for perjury. Here the whole matter ends. The proof,
thus furnished by the party, is presented to the judge, who, on this
evidence, grants the order demanded, frequently an order for arrest of
the person, for a seizure of goods, or some other proceeding in a cause,
equally important. Here is the testimony of the party himself admitted
in its worst and most dangerous form. No opportunity for cross-ex-
amination; no declaration in full; no appearance of the deponent before
the judge; the affidavit most frequently being made before another
magistrate. This evil was one of great magnitude, and to correct it as
well in cases where affidavits are already admitted as to prevent its re-
currence in those now under discussion, the code provides, that when-
ever an affidavit shall be taken in the course of judicial proceedings,
previous notice shall be given, whenever the ends of justice will not be
thereby defeated; but when that may be apprehended, the deponent
must be informed that, at a convenient designated time, he must attend
for cross-examination, and that wilful falsehood will incur the same
penalties as if it had been uttered under oath in open court. These
precautions, it is thought, will obviate the fear of rendering oaths too
common, and making parties regardless of their solemnity. How
far it would be proper to abolish the religious sanction given to a
judicial declaration, has been matter of some doubt. The regard paid
to a simple affirmation by a very numerous part of our community,
whose consciences do not permit them to take an oath, would seem to
indicate that it might be done with safety. But for the reason stated
at large in the introduction to the Code of Procedure, this sanction is
preserved in all cases, but those in which the declarent has religious
scruples.
2. The other objection urged against requiring the oath of the party to
his petition or defence was, that it would be considered as evidence by
the judges of the fact, and that an undue influence would thus be given
to the powerful, the rich and the influential, over the poor and unknown
suitor. I repeat this argument because it was addressed to me from
a highly respectable source, and therefore I am inclined to think
there must be more force in it than, I confess, I have been able to dis-
cover. This is certain, that a declaration under oath of any man,
whether witness or party, will derive some credit from his character
and the absence of motives to falsehood, which his situation in life sup-
pose; but so will his word when not under oath. If the plaintiff,
who is rich and esteemed, presents his petition, under oath, in like
manner does the poor and unknown defendant attest his answer. The
relative credit of the parties is preserved. Indeed, of the two modes,
the present affords the greatest advantage to the man of credit; his
simple assertion will, sometimes, have more weight than the oath of
one of bad or unknown character, but would, certainly, other things
being equal, be more readily believed than the simple declaration of
the latter. Requiring the oath of both parties restores, in a great mea-
sure, the equality. But if the objection be good for any thing, why
not apply it to witnesses as well as parties? And for fear that the oath
of the influential man should preponderate over that of the poor and
humble, why not banish the oath in this case also? As the law now
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INTRODUCTORY REPORT TO
stands, there is nothing, it is believed, to forbid any individual from
swearing to his pleadings; and thus it is optional with any, who thinks
he can derive an advantage from it, to throw his oath into the scale.
Having disposed-how satisfactorily the general assembly will de-
termine-of the only two objections made to the change, let us inquire
what are the advantages proposed by its adoption. In order fully to
appreciate these advantages, we must consider the objects which a wise
legislator ought to aim at in providing a mode for the decision of con-
tested rights. These are, that no one should be vexed by the com-
mencement of unjust suits; or delayed or defeated by a false defence in
the prosecution of those which are well founded. The means to attain
these important ends are, first, that the language of all law proceedings
should be simple and certain, neither involved in the mystery of tech-
nical language, nor disfigured by ridiculous fictions; that there should
be as much celerity as is consistent with proper deliberation; no more
than inevitable expense; and that every suitor should be responsible for
every injurious act wilfully committed. To effect which last and im-
portant purpose, it is essential that, as far as possible, there should be
no intervening party between him and the judge. Without this re-
sponsibility how can any of the great objects of practical jurisprudence
be obtained? A frivolous suit is commenced, to the great injury of
the defendant. The plaintiff says truly, "I never saw the declaration
that has been put in." Or, he may say, "I did see it, but I did not
understand a word it contained. My lawyer signed it, and told me it
was in the necessary and usual form. If it contains falsehoods, I am
not answerable for them." This would be a good excuse for the client,
and the advocate might avoid all responsibility by alleging, that he had
only put in technical form the instructions of his client. The proposed
change avoids this difficulty. It secures responsibility; when the client
is obliged to attest what he alleges on oath; when he is told by the
magistrate, who administers it, "Take care that you tell nothing but
the truth, for your falsehood will incur the punishment of perjury.
Take care you tell all the truth, for what you may endeavour to con-
ceal will be brought out on a cross-examination before the judge who
is to try the cause, and the public who will form their opinion of you
from the correctness of your assertions." In the face of these cautions,
falsehoods and vexatious suits will be extremely rare. Responsibility,
under this arrangement, can no longer be shifted off; and the certainty
and simplicity so desirable in legal language, will be inevitably at-
tained. We have the honour of being the first in the union, and that
in the incipient state of our freedom, while we were yet a territory,
to reduce legal procedure to a degree of simplicity unknown, per
haps, in any other country(a): and if the plain intent of the laws for
(a) While the practice under the territorial law, which the reporter prepared at the
request of the legislative council, was uncorrupted by the introduction of the common law
counts, a young gentleman, from one of the Atlantic states, applied to him to be admitted into
his office for the purpose of becoming acquainted with the routine of practice, previous to
his examination; and inquired, with much apparent solicitude, in how long a time, with
great assiduity, he might hope to make himself master of its intricacies? The answer was,
"It is not easy to calculate to a minute, but if you call on me to-morrow at two, as I do not
dine until four, I believe the task may be accomplished before we sit down." The surprise
THE CODE OF EVIDENCE.
269
that purpose had been adhered to, in practice, this strong reason for the
proposed change would not exist. But, although those laws directed the
parties to state the facts on which they relied, according to the truth of
the case, with the necessary circumstances of time and place, yet im-
perceptibly all the common law counts came to be introduced and in-
stead of a plain statement, which every body can understand, of the
manner in which, and the time when, and the place where, a sum of
money became due from the defendant to the plaintiff, we have a num-
ber of counts, as they are called, contradictory to each other, but all
relating to the same transaction, and unintelligible except to the in-
itiated. Counts for money had and received, for money lent, money
laid out and expended, as a ground-work, on which is raised the super-
structure of an alleged promise to pay, never necessary to be proved.
The necessity of swearing to the truth of the demand will, as a first
advantage, bring back the practice to its original purity, and banish the
fictions which the common law education of most of our lawyers has
introduced. The suitor is required to swear, not merely that the ma-
terial facts in his pleadings are true, which he frequently does on the
statement of his advocate, that the parts which he does not and cannot
understand, are matters of form only, but he must swear to the truth
of the whole allegation; and, in order to do this, he must understand
what is alleged; but, to understand it, it must be written in plain and
simple language, according to the fact. Thus several important points
are gained-clearness, simplicity and the absence of all technical jargon
in your proceedings. But this is not all. To diminish the number of
suits has always been, professedly at least, a great object with lawgivers;
but unfortunately they have imagined only one mode of effecting
this; increasing the expenses, vexations and delays of applications for
justice. Suits will certainly be diminished in number, if, to recover
ten pounds, as in England, a disbursement of that or a greater sum is
required. But it is not the interest of any state that suits should be
diminished in that manner. Its true interest is, that every man should
be deterred from asking what he has no right to receive; but should
recover what is due at the smallest possible expense, and with the least
degree of vexation and inconvenience; and that no man should be en-
couraged by the uncertainty of the law, or the hope of gaining an
unfair advantage from any defect of form or want of evidence in the
prosecution to withhold a just debt, or compensation for a wrong. The
proposed alteration, it is thought, will most materially lessen the num-
ber of suits; not by a denial of justice, but by its certain, easy and cheap
administration. This will be effected in the following manner.
First, all those suits will, it is supposed, be completely prevented, or
so nearly prevented as to be reduced to a most inconsiderable number,
which are brought without any other hope of success than that which
arises from the defendant's supposed want of the necessary proof to dis-
charge himself from an apparently just demand; for instance, the plain-
tiff having the evidence that a sum of money was once due to him, but
having reason to believe that the defendant has lost the evidence which
had been given of its discharge, brings his experimental suit, which he
gains if his conjecture of the loss of evidence was well founded; and if
of one, who had just passed some laborious years in learning the fictions of the common law,
may easily be conceived at this reply, in which there was little or no exaggeration.
270
INTRODUCTORY REPORT TO
he finds himself mistaken, he loses nothing but the costs.
Now, sup-
pose this plaintiff obliged, before he can commence his suit, to make
oath to the truth of the charge, will he risk the searching interrogato-
ries of his adversary, the danger of the evidence of the discharge being
produced, the punishment, the infamy, that will await his detection?
Certainly not. This whole class of cases, then, may be considered as
struck off from the docket.
Next to those are the less numerous cases in which suits are brought
merely for purposes of vexation. As greater risk, nay a certainty of
failure, must attend these; and the same consequences follow the sup-
port of them by a false oath, we may as reasonably suppose that these
also will be swept away.
In the cases considered, the party is supposed to be conscious of his
want of merits. A more numerous class is composed of those in which,
from irritated feelings or false information, he really believes himself
injured and entitled to relief. Under these impressions he has nothing
to do but to direct the suit. The man who stands between him and the
judge, for the most part, does not examine very closely into the proof
by which the suit is to be supported: it is not his interest to do so. He
commences the suit; and to commence it he has no need in other states,
in any case, and since the introduction of the common law counts, he
has no need in many cases here, of any precise information as to the
cause of action. He files his petition, stuffed with a variety of counts
or statements, some one of which he hopes the evidence will fit; and
when, in due time, the cause is ready for trial, he begins to call for the
testimony, and finding that it will not support the cause, it is either
dismissed, continued with the vague hope that some evidence may in
time be discovered, or it is brought on with no prospect of success but
that which the uncertainty of the law will afford. Instead of this care-
less, precipitate mode of proceeding, impose the necessity of such a
precise statement as must be attested on oath and supported by the
examination of the party making it under the interrogatory of his ad-
versary, and the causes of this description also will be greatly dimin-
ished in number.
There are other causes which may be readily supposed will, under
the proposed regulation, restrain plaintiffs from bringing experimen-
tal, vexatious and hasty suits. The same causes will operate on de-
fendants to make compromises and settlements before suit brought, or
prevent a frivolous or vexatious defence afterwards. It will no longer
be sufficient for an attorney to say for a party, that he owes nothing,
or to put in any other plea or allegation that he knows to be false, in
order to retard or avoid the payment of a just debt; or the perform-
ance of any other legal obligation. The previous oath, the all-search-
ing subsequent interrogation under the inspection and in the hearing
of the public, will effectually prevent any false pretence being made.
The creditor, not being irritated by the delay, the vexation, and the
expense of a groundless defence, will be more lenient; and the debtor,
knowing that he cannot rely on these shifts, will be more punctual; and
thus the same measures which facilitate the recovery of a legal demand,
will prevent those from being made which are unfounded or vexatious.
Having demonstrated, as it is hoped, the utility of requiring that all
the judicial allegations of the parties should be substantiated by their
oaths, under the correctives of publicity, cross-examination, and the
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271
right of interrogation given to the judge and the jury; and having pointed
out the analogous reasoning which would require the admission of
the testimony of the parties in the cases in which that of interested
witnesses is permitted; it remains only, under this head, to give the
reasons why the code has not permitted the parties to offer themselves
as witnesses in all cases without restriction. It has been a principle,
in preparing this plan, not to be deterred from proposing any useful
change by the mere consideration that it was new; but, at the same
time, to respect existing institutions, so much as to innovate no further
than was necessary; and never where the useful end proposed could
be obtained without shocking established opinions or prejudices in
favour of known forms, although they might be, in some degree, in-
convenient.
In the present instance, the maxim, that no one should be a witness.
in his own cause, had been so long established, as a self-evident propo-
sition, that it was supposed much more feasible to add to the exceptions,
which, as we have seen, were admitted in practice, than to deny its
truth; while, at the same time, nearly all the advantages that could be
expected from abolishing it entirely, were secured by the extensions
which have been enumerated; to which may be added, that although
the party cannot, except in the cases and in the manner specially pro-
vided for, support his case by his own testimony, yet the faculty given
to the judge and jury to examine him, will in very nearly all cases
supply the deficiency; because, having his oath in support of his own
statement, as set forth in the pleadings, if that statement should be de-
nied or explained away by other testimony, the judge or jury will na-
turally apply to the party to know how he accounts for the difference,
and thus he will have the same advantage which a right to offer his
own testimony would give.
The exclusion of interested testimony having been examined, and
found to be injurious to the investigation of truth, and its admission to
be attended with no inconvenience which may not be reduced to one
of a quantity that has no assignable value; it, of course, finds no place
in the proposed code; and with it disappears one of the most fruitful
sources of uncertainty, expense, delay and inconvenience, in the law.
If the search after truth requires that interested witnesses, and even
the parties themselves, should be interrogated to discover it, are there
any relations, in which the offered witness may stand to the parties,
that ought to exclude his testimony? By the English law, and of
course, in the several cases which have been noticed, by ours, there are
several husband and wife-attorney and client-parties in the same.
cause.
:
1. The code now offered does not contain the exclusion of husband or
wife, as witnesses, for or against each other; because the reporter does
not find any one sufficient among the reasons by which it is supported in
the English decisions or commentaries. The first of these alleged reasons
is, that their interests are identical" (a). But in a system which dis-
cards interest as an objection to competency, this reason falls of course.
The second is said, by the same authority, to be "on grounds of public
policy" to prevent distrust and dissension between them, and to guard
against perjury. It is said, that individual interest and individual rights
(a) 2 Starkie, 706. 1 Bl. 443.
272
INTRODUCTORY REPORT TO
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may sometimes, by a wise legislation, be made to yield to the good of the
whole community, which is understood to be meant by the expression
"public policy ;" but those cases are not numerous, and generally admit
of compensation, and ought only to be allowed when the public advantage
is evident and so important as greatly to overbalance the individual
inconvenience which is incurred to promote it. In the case before us,
the public evils are designated: first, the danger of domestic dissension;
secondly, the danger of perjury. The first, if the evidence should be
against the party connected with the witness; the second, if it should
go to exonerate him. The argument supposes, that if the husband or
wife be called as a witness in a suit to which the other is a party, one
of two things must happen; either unfavourable truths will be told,
which it is said will disturb the family peace; or perjury will be com-
mitted, to preserve it. Now these are two opposite and contradictory
reasons. If the danger be, that family dissensions will grow out of the
testimony, then that of perjury is avoided; if the danger be perjury, then
that of family discord need not be apprehended. But legislation must
be founded on the general application of its reasons; not on the ten-
dency of its measures to good or evil in particular instances. If the
connexion by marriage be so close as to make the parties incur the dan-
ger and disgrace of giving false testimony for the other, then let the
case be examined solely with a view to the evil of placing the witness
in a situation where strong motives are offered to him to commit a
crime. If the predominant risk be that of destroying domestic har-
mony, let that be assigned as the reason. But to allege both, when
they are contradictory, is a strong presumption that neither can safely be
relied upon. Both, however, will be examined, and both contrasted
with the evils which attended the exclusion.
First, let us suppose that domestic dissension is the danger; that is
to say, that one spouse will quarrel with the other for telling the truth,
in a court of justice, when it makes against the interest of the other.
But in most cases the interest is common between them; therefore,
there is little probability that any ill will can be created in the mind
of the one against the other for not committing perjury, in order to
protect a common interest. The supposition that a domestic broil may
ensue from a cause like this, is to suppose the party raising it corrupt,
in expecting falsehood from his or her spouse, and malevolent in re-
senting his disappointment; and the law cannot reasonably be required
to make any great sacrifice for preserving the harmony of so ill-assorted
an union as that which such a case supposes. The dissension arises
from the performance of a duty-bearing open testimony of the truth;
and avoiding a crime-the commission of perjury: and, because a brutal,
corrupt, or passionate husband, may quarrel with his wife for avoiding
the crime, shall the law declare, that the wife shall not perform the
duty? It will watch over domestic peace by punishing those who dis-
turb it, and for proper causes, by dissolving the bond of an ill-assorted
connexion: but it ought never to say, the one party shall be exempted
from the performance of an important public duty, because the other is
tyrannical and unjust. The argument supposes, too, that there is greater
danger to domestic happiness from this than from any other source;
but is there any foundation for the belief? Not one case in a thousand,
it is believed, will occur in practice where any improper excitement
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273
will be created by an adherence to the truth, although it should militate
against the wife or the husband of the party who states it. Why should
it more in this case, than in that of any other witness? Mutual affec-
tion, the knowledge that it was the performance of a duty required by
law, and that it could only be avoided by a crime, are so many and
such cogent reasons to prevent ill-will on the occasion, that it is aston-
ishing how this reason could find favour with the great lawyers who
have assigned it as an argument in favour of their rule; more espe-
cially when they themselves most explicitly discard this reason by
declaring, that the wife shall not be allowed to appear as a witness
against the husband, even if he consents, or after a divorce; nor against
the interest of his heirs after his death (a). How connubial happiness
can be disturbed by a compliance on the part of the wife with her hus-
band's request while united, or by any act after the connexion has been
dissolved by death or divorce, these learned doctors of the law alone
can explain.
Examine the opposite reason-the danger of perjury; that is to say,
the matrimonial union is so strict, that the one party to it will incur all
the dangers of punishment and infamy rather than tell the truth when
it is injurious to the other; and the law, it is said, holds out this irre-
sistible temptation to the witness when it permits him to be examined.
Yet, by the preceding argument, the temptation is easily resisted, the
truth will be told, and this strong connexion is so weak, that it is broken
merely on that account.
But the arguments must be destroyed, not by opposing the one
to the other, but both of thern to the truth. There is no doubt that
in this, as in many other cases, minds may be found that will waver
between the declaration of a truth that may hurt their interests or
their feelings, and the assertion of a falsehood that, in their opinion,
may secure both from injury; but can the law be said to hold out a
temptation to perjury when it orders a party, under those circumstan-
ces, to tell the truth? If there were no temptations to conceal the
truth, or assert a falsehood, there would be no need of oaths. Oaths,
and the penalties for breaking them, were made for the purpose of coun-
teracting that disposition. If they were to be dispensed with in cases
where that disposition exists, there would be no need for them in any
others. In every such case, then, it may with equal reason be said,
that the law holds out a temptation to perjury, because it exacts the oath
to tell the truth, when there is an inclination to conceal it; and the ar-
gument would extend with equal reason to the abolition of oaths, and
the penalties for the breach of them. This exclusion is at variance, too,
with other provisions of the law as they already exist. The party him-
self may be interrogated in chancery in England, and in all cases at
law here. The wife may be interrogated to support an accusation made
by herself against her husband for a personal injury, in some cases af-
fecting his life; yet she is not permitted to prove a fact that would save
him from an ignominious death, on a charge brought against him by
another. Now in all these cases the danger of perjury is equally great,
or greater, unless we suppose the attachment of a wife to her husband's
interest superior to his own; or her desire to make good her own
charge less intense than that she would feel to support the accusation
brought by another. The danger of perjury is no greater in this than
(a) 2 Stark. 706. 6 East, 192.
2 K
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INTRODUCTORY REPORT TO
in other cases in which it is incurred, without scruple, in the dearest
connexions of nature; father and son, mother and child, brother and
sister, friendships of the most intimate kind, habits of intimacy during
a long life—the parties to all these are every day arrayed for and against
each other as witnesses, and the law interposes no other safeguard to
their consciences, than its penalties, and the danger of infamy by detec-
tion. No rule of exclusion protects the witness against the influence
of his affections or his interest. He is heard, and the degree of con-
nexion is weighed against his character and the probability of his story;
the counsel cross-examine; the public inspect; the jury interrogate, and
calculate, and determine; and no inconvenience is felt in those cases.
Why should there be in this?
Having stated the general principle, that every party to a suit has a
right to all the information in relation to his cause, of which he ought
not to be deprived but for reasons of great public or private incon-
venience; and examined by discussing the reasons for exclusion in this
case, whether it offers any such inconvenience; let us now examine the
particular evils attached to the rule as it now stands.
In criminal cases the evil is most apparent. Suppose the husband,
accused by positive, but perjured testimony, of a crime affecting his life,
and the wife, the only witness of a fact that would prove his innocence;
no matter what circumstances she could adduce to corroborate her testi-
mony, no matter what intrinsic evidence it contained, no matter what
perfect conviction it would produce of its truth, it is sternly excluded;
and the innocent husband is executed because "public policy requires
that the peace of families should not be disturbed, and that no
temptations should be held out to perjury." In this case, by no
means an improbable one, there is positive evil, cruel injustice, heart-
rending distress. In the case which the law attempts to guard against,
inconvenience only, if it occurs, but an inconvenience highly improba-
ble to happen, inasmuch as it is supposed to affect domestic union; and
as it is believed to be a temptation to perjury, not one strong enough to
produce the effect, or should it be yielded to, would be capable of de-
tection by the usual means. But even without supposing the extreme
case of life or death, the suppression of testimony is, in all cases, an
evil; and the law deprives the party of a certain right, to avoid a
problematical inconvenience.
On the other hand, suppose the testimony of the wife necessary to
procure the conviction of the husband: she is the only witness to a
murder which he has committed. This I consider the strongest ground
for the exclusion; it enlists the feelings, and they are most frequently
found on the right side. Shall a wife be forced to give testimony that
will condemn her husband, the father of her children, to infamy and
death, or take refuge in the crime of perjury to avoid it? I confess
that if the alternative could be avoided, a humane lawgiver would not
enjoin it; but if sympathy for individual distress should not be entirely
rejected, it ought never to be entertained when its indulgence would
lead to more extensive injuries to the community. A wise and provi-
dent legislator must have the consequences of every legal provision as
present to his mind, as its immediate operation is to his senses; and in
applying this rule to the subject under consideration, he should not, in
tenderness to the feelings of conjugal affection, permit the husband or
wife to escape punishment for a crime, or defraud another of his right,
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275
by declaring that the only witness of the offence, or the wrong, shall
not be heard. Some crimes cannot be perpetrated without the aid of
an accomplice. The accomplice may betray the principal. The fear
of this treachery, in many instances, may prevent the crime; or a per-
son may not be found willing to engage in the enterprise. But, by
the rule of exclusion, the law furnishes an assistant, who can never
betray, and one who is always at hand; and thus gives a facility to the
commission of offences which no other circumstance could possibly
offer. Besides, public justice requires, and common sense would seem
to point out, that those persons who are the most likely to be acquainted
with the fact should be first called on to prove it; but who so probable
to know the guilt or innocence of the party accused as the companion
of all his hours, the depository of his most secret thoughts; and what
better calculated to prevent an intended crime, than the knowledge that
those from whom it is so difficult to conceal it, may be made the un-
willing witness of its disclosure? Precisely in the proportion that a
man would be encouraged to commit a crime by the knowledge that
the
person to whom he finds it necessary to confide it, cannot become
a witness against him, will be his fear of committing it, when he knows
that there is no person in whom he may confide, that may not be forced
or be willing to betray him.
So sensible of this have been the judicial lawgivers of England, that
they have imposed no bar to the receiving the testimony of father and
son, mother and daughter, brother and sister, and all the other relations
of consanguinity or affinity. They have had no regard to the confi-
dences of friendship, and have thought that the affections of nature, as
well as those of habit and sympathetic feeling, should afford no obstacle
to the attainment of the ends of public justice. They have gone farther,
and made an exception to the rule which they laid down, as one in-
violable, even by consent(a), in the case of husband and wife; and as
we have seen, have allowed the wife to be produced as a witness against
the husband on a prosecution for an injury done to herself. Now mark
the reason! It is a convenient and a ready one: from the "necessity of
thecase;" which must mean, if it mean any thing, that there is a necess-
ity that crimes should be punished, and that unless the testimony of the
wife were admitted, they would, in those instances, be unpunished.
Now, admit this reasoning, and see whether it does not go to the utter
destruction of the rule to which it is offered as an exception. There is
no greater necessity for punishing a crime committed by the husband
against his wife than there is for punishing the same crime committed
by him against another; and if the wife is the only witness that can
convict in the last case, her testimony is as necessary as it is in the
first; and being necessary in both, it should not be admitted in one and
excluded in the other. But, in truth, the inquiry is never made; and
in this, as in all the other cases founded on the convenient argument of
necessity, although there may have been twenty other witnesses pre-
sent, the pretended necessary witness is admitted; and, although there
may be none but him conversant of the fact, he is rejected where it has
not yet been deemed convenient to admit the argument of necessity.
2. The advantages of receiving testimony from this source so greatly
overbalance its evils and the inconveniences, and the injustice of re-
(a) 2 Starkie, 706. Rep. Temp. Hardw. 264.
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INTRODUCTORY REPORT TO
jecting it are so manifest, that I have not hesitated to give this exclusion
no place in the code. Not so with that arising from the next relation
-that of counsel or attorney and client. In this I have offered little
or no alteration to the existing law, as laid down by the latest decisions;
and this course has been the result of much reflection, and has been
preceded by more doubts of its correctness, than I have found on any
other provision of the work. Although I have earnestly endeavoured
to discard all unfounded prejudices in favour of established and inju-
rious errors, merely because they were established, it is yet possible
that I may not, in this instance, have succeeded, and that ideas enter-
tained during a professional course of more than forty years may have
so fastened themselves upon the mind, as to give them a force they are
not entitled to, and induced me to retain a provision which ought to be
abolished. The legislature must judge of this; and that they may do
so, the arguments, which besides are not devoid of interest, for abolishing
and retaining the provision must be stated.
The ex-
The foundation for the reasoning against the exclusion is the ac-
knowledged principle, that in judicial proceedings every thing calculat-
ed to bring the mind of the judge to a just conviction of the truth
ought to be produced, unless the evil of its production should be greater
than the good to be expected from it. In this case, say the arguers on
this side of the question, the evil is all on the side of the exclusion.
The object is truth; who so like to know it as the confidential adviser
of the party? If the client have a just cause, the advocate can dis-
close nothing to his prejudice. If he is in the wrong, there is no rea-
son why it should not be disclosed. This is the great object of the
law; nor will it be attended with that which the advocates for exclu-
sion consider as the great evil, the violation of confidence; for all the
communications between client and counsel will be made with the
knowledge that, if called on, the latter must declare them.
clusionists, say their opponents, seem to consider that the great object
of the law, in criminal cases, is the escape of the guilty; for their ob-
jection is founded on the supposition that the client has confessed his
guilt to his legal adviser; and their rule is framed in order to conceal
that confession, and thus to favour his escape. Whereas, its sole aim
is the punishment of guilt; and the confession of the party being the
strongest evidence, ought not to be suppressed. So far, they add,
from the declarations being dangerous to innocence, it is one of its
strongest safeguards. If the client be really innocent, he will make
no confessions; and the declaration of his counsel that he has made
none to his professional friend, cannot but be a presumption in his
favour. Nor is there any thing derogatory to the dignity of counsel,
or that ought to affect the delicacy of his feelings, to be called on for
the confessions of his client. As a minister of the law, his desire must
be that they should be faithfully executed; and whether conviction takes
place on his declaration of a fact communicated by his client, or known
from any other source, is perfectly immaterial in both cases. He does
his duty in declaring the truth, and he ought to feel equally free from
self-reproach in both. On the contrary, the profession is degraded by
making the advocate, in effect, the accessary after the fact, to a criminal,
by aiding him to escape the penalty of the law, with a knowledge that
he has incurred it. Why, too, it is asked, will you extend this privi-
lege to attorneys and counsellors, when you deny it in the case of
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277
physicians, friends, or the nearest relations? In these cases there is
equal confidence reposed, and, in many instances, necessarily reposed;
yet there is no exclusion. Besides, the contract between counsellor
and client ought to be governed by the same rules that are applied to
other contracts in relation to the legality of their object. A contract
to enable one to defeat the known operation of law, would be reprobat-
ed by the courts. But the object of this contract, where the party is
guilty, is precisely one of that description, and ought not to have any
binding force.
These are the main arguments, greatly abridged and undoubtedly
weakened in the operation, by which it is contended, that in all cases
the counsellor and attorney ought to be admitted as witnesses against their
client. These reasons are forcible, and some of the arguments, at first
view, unanswerable; but when maturely considered, they seem to me
to rest, for the most part, on the untenable ground that, if the client
be innocent, he has nothing to fear from the disclosures of his counsel;
and that if he be guilty, he ought not to be protected against them.
I have applied the term untenable to this basis of the argument from a
belief that, in many supposable cases, the most perfect innocence may
suffer from the disclosure of circumstances necessary to be communicat-
ed to a professional adviser. In a civil case, concerning the title to
land of which the client is in possession, and which he holds under an
ancestor, whose title, though acquired in good faith and for a valuable.
consideration, is defective in form, the client, ignorant of the forms
required by law, thinks the title is good, but having occasion to make
some family settlement, shows it to his counsel, who immediately per-
ceives the defect. What is the consequence? Is the professional man
bound to secrecy or not? Whatever be the answer to this question, it
seems to be decisive, at least in such a case, of the propriety of the ex-
clusion. If he be not bound to secrecy, he may, without blame, im-
mediately communicate his discovery to the party interested, and his
innocent and confiding client is ruined. Every feeling of justice, hon-
our and humanity, would be shocked at this; and one of the most
ingenious opponents of the exclusion seems to admit, that the uncalled.
for communication of a fact of this nature would be improper, for he
excludes it expressly from his argument, which he confines to the
propriety of obliging the counsel to answer when interrogated in
court(a). But if the counsel be bound to secrecy before the trial, why
should he be absolved from the obligation on the trial? To admit the
obligation out of court, is to acknowledge that it arises from some pro-
fessional duty; and if it be a duty, it ought to be enforced at all times
and in all places, for it would be a strange provision which imposed
secrecy under pain of disgrace, and perhaps the censure of the court,
for communicating that at one moment which the next it directed to be
proclaimed to the world. For if it be a duty to keep the secrets of a
client, it must be a professional duty, and can only be founded on the
injury that would arise to him from the breach of his confidence. But
the greatest of all injuries would be caused by bearing testimony to
the fact he wished to conceal. Therefore, to admit that there exists a
professional duty to keep the communications of a client secret before
trial, is a fortiori admitting that the same duty requires them to be
kept secret at all times when the communication of them would injure
(a) Editor of Bentham's Rationale of Jud. Evid., 5th vol. page 315.
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INTRODUCTORY REPORT TO
the client. It does not appear to be a fair answer to say, that the client
himself might be forced to declare the fact upon oath, and that, there-
fore, there can be no impropriety in drawing the same declaration from
the counsel: for, by the case supposed, and others which might be put,
the adverse party had no notice of the defect, and therefore could not
have made it the foundation of his suit; and the client himself being
ignorant of the want of form in his title, could not disclose it.
Again, take a criminal case. Money has been stolen, consisting of
coins not very common in the place where the fact occurred. The ac-
cused has been seen to pass some pieces of the same description; other
circumstances cause him to be suspected. He has no proof of the
manner in which he acquired the pieces in question. He is innocent;
but he confesses to his counsel, that about the time of the loss he was
in the chamber where the theft was committed. The other circum-
stances would not be sufficient for his conviction; but this, added to
them, would have that effect; and there is no other proof but his con-
fession to his counsel. Shall he be forced to cause the conviction of
the innocent man whom it is his duty to defend? That the testimony
of any other, to whom the prisoner may have made the same confession,
would have the same effect will scarcely be deemed a good answer,
because the case supposes that he has made no such communication
and because it was necessary to state his whole case to his professional
adviser; but no such necessity existing as to any other, it would have
been an act of imprudence to do so, for the consequences of which he
could not blanie the law. We must suppose, say those who argue against
the exclusion, that all laws are good, and, of consequence, that they
ought to be executed; and the truth, by whatever means brought to
light, can never injure the innocent, because no good law can ever di-
rect a punishment to be inflicted on any but those who are convicted
on true testimony. The disclosure of the truth, therefore, can only
injure the guilty, whom it is the object of the law to punish, but the
innocent have nothing to fear. But the question does not turn on the
justice or injustice of the law, but on the sufficiency of the evidence to
show a breach of it. The law, in the criminal case supposed, that forbids
theft, is a good law and ought to be executed; but the effect, upon the
minds of a jury, of the circumstantial evidence, adduced to show the
guilt of the accused, cannot be regulated by law; and the true circum-
stance of the presence of the party at the place where the fact was
committed, might lead to a false conclusion that he was the offender,
and therefore might, with great propriety, be convicted. So in civil
cases, circumstances of common occurrence may be supposed, which,
though true in themselves, might probably lead to a false conclusion;
and which therefore could not, without injustice to the client, be dis-
closed by his advocate. An estate depends upon the question of the
sanity of mind of a testator. The law annulling testaments made
by persons labouring under insanity is a good law, and ought to be ex-
ecuted; yet a defendant, holding lands under a testament made by a
person of sound mind, may communicate circumstances, such as acts
or speeches of the testator, out of the common course, which to a jury,
ignorant of his habits, might seem indicative of derangement; and
thus endanger the client's good title. If it be said that in all these and
other cases that might be imagined, the reaction of the circumstances
would be accompanied by a denial of the main fact which they might
render probable, and that as it is a rule that the whole confession must
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279
be taken together, the danger would be obviated; it is answered, that
the rule cited is a good one, but that there is a general disposition to be-
lieve so much of a confession as make against the party, and to disbe-
lieve the rest; and that moreover the client in a confidential conversa-
tion with his counsel, might not always so connect the parts of his
communication which were injurious to his interests with those which
supported them, as to render them inseparable, and that if they are not
so connected, the rule will not apply.
All the reasoning hitherto has been under the improbable supposition.
that, if the law were changed, the client would go on to make, and
the advocate to receive, the confidential communications in question.
But take away the rule of exclusion and what happens? The client
does know, or does not know, that his counsel is obliged to discover all
he may communicate to him. If he do not know it, but proceeds to
state circumstances that show his guilt, what is the counsellor to do-
stop him short by a refusal to hear the story? But why should he do
this? If the duty of carrying the law into effect obliges him to dis-
close what he hears, the same duty should induce him to listen to the
communication. Remember also the principle is, that no dishonour
should be attached to any thing that enforces the execution of the laws,
that this is the first duty of a good citizen, and that it must follow, as I
have said, that the counsellor is as much bound to listen to the com-
munication as he is to disclose it afterwards. For, I think, it has been
sufficiently shown, that, if it be a legal obligation to state the confession
when interrogated, there is a moral obligation to discover it before the
interrogation; because they both stand on the same foundation-the duty
of causing the laws to be executed; and, indeed, the voluntary revela-
tion, if it be a good act, would be more meritorious than the forced
discovery under interrogatories: and the consequence is, that the pro-
fessional man of high honour, selected by the accused to defend him,
or assigned by the court to that honourable office, must listen to the
story of his confiding client, must treasure up the circumstances which
tend to inculpate him, and then hasten to the public prosecutor with the
information he has thus obtained. What man of humanity or honour
would accept of such an office? The laws must be executed-yes! but
by such means as are not repugnant to those sentiments of self-respect
which every good citizen ought to entertain. To creep into the confi-
dence of even a guilty man, under pretence of being his defender, for
the purpose of bringing him to justice, is an act that never can be viewed
in a moral or respectable light. A public enemy must be destroyed,
but not by poisoned weapons. The means, in both cases, are more in-
jurious than the end is useful.
Take the other, and the more probable, alternative. The law is known
to both client and lawyer, and what happens? There will be nothing
communicated, and the advocate will have nothing to declare. Public
justice, then, acquires nothing by removing the rule of exclusion. But
is there nothing lost on the score of humanity? Are no advantages taken
from the innocent by this fruitless attempt to gain one over the guilty?
The advocate warns the client not to utter any thing that may injure
him on the trial. The client replies: "In order to enable you to make
my defence, I wish to lay before you the whole transaction in which
this suit, or this accusation is founded; but I am an ignorant man. I
do not know whether some of the circumstances I may relate can-
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INTRODUCTORY REPORT TO
not, by the ingenuity of my adversary, be made to bear against me. It
will be best, therefore, for me to keep them to myself. I must forego
the benefit of your advice, because I cannot, without fear of being en-
trapped, tell you all you ought to know." Thus the great benefit
which is the boast of modern criminal law, allowing counsel to the ac-
cused, is in most cases impaired, in many rendered of no avail. In the
work to which I have before referred (a) it is acknowledged, that, if the
exclusive rule were abrogated, no confessions would be made, and, of
course, little or no information would be obtained. But it is further
contended, that the exclusion creates a combination between client and
lawyer, to protect the former, although guilty, from the penalty of the
law; that the advocate becomes, in effect, the accessary after the fact,
by concealing the guilt which had become known to him, and by aid-
ing the culprit to escape; and thus an act which would be culpable in
one, is made the subject of boast in another. There is some force in
these observations, so far as they apply to the devices by which solici-
tors degrade themselves and their honourable profession for the purpose
of suppressing or perverting testimony, in order to procure the acquittal
of their client, whom they know to be guilty. Whether any remedy
can be found for this inconvenience, consistently with the preservation
of the rule of exclusion, may, perhaps, be doubtful; but although the
secrecy it requires may sometimes be abused in this manner, yet it is
not the necessary consequence of it. An honourable and conscientious
advocate may contend for the acquittal of a client whom he may yet, from
circumstances disclosed to him in his instructions, believe to be guilty.
He may, under the operation of the present rules of evidence, do this
from two considerations: first, because he cannot properly make him-
self the judge of the man whose case he has undertaken to defend, not
to decide upon. Secondly, because, while the rule of exclusion lasts,
the confession of the accused to his counsel is no evidence, and it is the
professional duty of the advocate to see that the accused is condemned
by legal evidence only. This supposes no other combination between
client and counsel than one which goes to support, not to defeat the
law. If the evidence, independent of the confession to counsel, be de-
fective, and the confession be no evidence, surely there is no immo-
rality in urging an acquittal. On the contrary, the immorality and
illegality would be in procuring a conviction which was not justified by
legal evidence. The repeal of the rule of exclusion, then, is not re-
quired from this consideration; and not believing that any positive good
would result from its abrogation, it has been retained in the code-but
confined strictly to cases of communication for professional aid, either
in the conduct of, or preparation for, a suit or defence, or for advice in
some lawful occasion.
3. The next exclusion of testimony applies to religious confessions,
made to a priest of the catholic religion. The reasons for this are obvious.
To force the disclosure, if it could be done, would be a tyrannical invasion
of the rights of conscience; and the law would be useless if it could be
executed; because, in that case, as in the case of counsel and client
which has just been examined, no confessions would be made, and there
would be nothing to disclose. But, independent of the protection of the
religious duties and opinions of a numerous class of our fellow citizens,
(a) Editor of Bentham's Rat. Jud. Proof.
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281
much positive good has resulted from the institution of this religious
rite: confession is calculated to produce repentance and reformation;
crimes have been prevented, restitutions made, and unjust litigation
averted, by its means; and moreover, the penance imposed by the priest,
furnishes the means of inflicting some penalty for offences that, being
unknown, would otherwise be unpunished. This rule of exclusion is
not acknowledged by the English law(a), although it has been enforced
by a decision in the state of New York(b). In confining this protection
to the priests and penitents of a particular sect, I was guided by the be-
lief that, in no other sect was auricular confession made obligatory as a
religious duty, and consecrated as one of the solemn rites called sacra-
ments, as it is by that description of Christians. Professors of other re-
ligions, and of other sects of the same religion, may seek to disburthen
their consciences by confession to a minister or priest, but as secrecy in
those cases is not a religious duty in the clergyman, his conscience
would not be violated by exacting a disclosure; and as the confession
is not obligatory on the penitent, it must be considered as a voluntary
communication; and it would be difficult to draw a distinction between
this and any confidential confession to another individual. Whenever
a religious sect shall arise, among whose tenets confession is held to be
a religious duty, and concealment of the matter in confession an obliga-
tion of the most sacred kind, then the same protection ought to be
extended to the professors and priests of such sect.
4. Other descriptions of persons, excluded from testifying by the
English law, and of course by ours, are those who are deemed infamous.
We have seen the numerous classes which this vague description em-
braces in the Spanish law, which, it is necessary to repeat, is also ours
in civil cases, and in those of other criminal causes than those designat-
ed in the law of 1805. Nor is the legal import of the term well defined
by the English decisions(c); so that, if it were proper to exclude the
testimony of the infamous, a law would be necessary to designate what
persons ought to come under that description. But it is thought that
this will be rendered unnecessary, when the propriety of continuing the
exclusion comes to be considered.
Let us recur to the position made in the argument against one of the
former rules of exclusion, that no man will, without some motive, make
a false statement in preference to one that is true; and having seen that,
even when that motive exists in the shape of interest, there were so
many antagonist motives always at work as to render it more probable.
that truth would be extracted from an interested witness, than that he
should either endeavour to deceive or succeed if he did attempt it.
Having come to this conclusion in cases when the motive for falsity
exists, why should we hesitate in a case when no such motive appears?
One who has been guilty of falsehood, perjury if you will, ninety-nine
(a) 2 Starkie, 396.
M'Nally, 258. Peake, 77. 2 Atkins, 524.
(b) Smith's case. Philip's case.
(c) Where a man is convicted of an offence, which is inconsistent with the principles of
honesty and humanity, the law considers his oath to be of no weight, and excludes his testi-
mony, &c. 2 Starkie, 713. This is the text on which commentaries have been made by
numerous decisions, none of them denying any future judge the right of declaring any other
offence to be contrary to the principles of honesty and humanity, and of course, rendering
those guilty of it, incompetent witnesses.
2 L
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times, will tell truth the hundredth, if he expects no advantage from
concealing it or telling a falsehood. Remember that we are now speak-
ing of infamy alone as a ground of exclusion, not infamy coupled with
interest in the shape of a bribe, or any other motive directly operating
on the witness. To justify the exclusion in such a case, we must
suppose that because a witness has, for some advantage received or
expected, told a falsehood once, he, without any advantage to him-
self, without any motive, for ever after will persevere in telling false-
hoods rather than truths. Nay, more, we must suppose that after hav-
ing been detected and punished for the falsehoods which he was in-
duced by the hope of gain to utter, for it is the conviction only which
creates the incompetency, he will, without the hope of gain, incur the
same risk merely for the love of falsehood. This is so improbable, that
some inducement must be added, to render the perjury probable, and
justify, on that ground, the exclusion. What shall that be? An interest
in the event? But we have seen that this alone is not sufficient cause;
nor is the conviction for an infamous crime alone a sufficient cause.
If the union of the two produces that effect, then the rule should be,
not that an infamous, but that an infamous and interested witness ought
not to be heard. But the rule, even thus modified and restricted, would
be a bad one, on account of the effect it would have on the right of third
persons, and on the security of the person and property of the party
who had been convicted. The most approved authorities, from which
the rule is derived, add, as the reason on which it is founded, "that the
law considers the testimony of one so convicted as of too doubtful and sus-
picious a nature to be admitted in a court of justice to affect the pro-
perty or liberty of others” (a). This supposes the testimony of the
witness always to be intended to take away the property or liberty of
another. But how if its being heard be the only means of preserving
property, or liberty, or life itself? How then? Is it of too suspicious
a nature to effect these good ends? It would rather seem that the
reason may, in many cases, be traced to the inconsiderate legislation of
early ages, which made the disability to testify a part of the penalty
for the offence, intended to affect the offender alone, without considering
the extensive operation it might have on the interests of others; for we
find the same clause introduced into modern statutes, adding, after other
penalties, and shall be incapable of testifying in any court of justice."
But whatever be its origin, there is no good argument for its continu-
If there are some occasions on which we may choose our own
witnesses, there are many others, and quite as important, on which this
is regulated by chance. If the only and casual witness of a transaction,
on which fortune may depend, happens to have been convicted in this,
or even in a foreign(b), country of an infamous crime—no matter what
time has elapsed, or what the character of the witness may be he is
ance.
(a) Starkie, 714, cites Gilb. L. E. 256. 2 Bulst. 154, Br. b. 4, c. 19. Ib. b. 4, c. 8.
Blackstone gives one of those fanciful reasons, too frequently found in his excellent work, in
support of the common law rules, that "because the person convicted of an infamous crime
could not have served as a juror, he should not be permitted to give evidence to a jury, with
whom he was too scandalous to associate."
(b) This point has been differently decided in Massachusetts and in Maryland. In the
state first named, the foreign conviction did not disqualify; in the last, it operates as an
exclusion. 17 Mass. 515. 2 Har. & M'H. 120. Ib. 373. 1 Har. & J. 572.
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283
incompetent. No matter whether his testimony is corroborated by
circumstances so as to render it evidently true, or whether it is enforced
by being clearly contrary to his interest, nothing can render it fit to
be heard; truth itself-evident, uncontradicted, and incontrovertible
truth-must not be received from lips that have once been polluted by
falsehood, if that falsehood have received the condemnation of law;
for, unless sentence have been passed, an hundred falsehoods, proclaim-
ed in the market-place every day of the witness's life, will not disqualify
him. But, even in the cases where the witness is selected, there is no
security; his previous conviction may be unknown, or a subsequent
judgment may incapacitate: and cases are not wanting where testa-
ments, regularly executed in the presence of the requisite number of
witnesses, have been set aside(a), and the will of the testator disregard-
ed, because one of those witnesses had, either previously or subsequent-
ly, been convicted of a crime, the chief punishment for which has thus
fallen on the innocent. Even life itself may fall a sacrifice, the life of
the innocent by an ignominious death, to an adherence to this rule, and
that by no violent supposition of circumstances. A homicide has been
committed which, according to appearances, would be murder, but
which facts, known only to the convicted witness, prove to have been
a justifiable act; but that witness cannot be heard. Thus fortune,
liberty, life itself, are sacrificed to the maintenance of a rule which is
absurdly invoked as their support.
5. Thus far the exclusion of the witness has been considered only as
it may affect others. But consider the more probable operation it may
have on the witness, and through him on the public peace.
In the long
list of offences against person or property, how many are there to the
conviction for which the testimony of the party injured is indispen-
sable? All these may be committed with impunity against a person
disqualified by this rule from giving testimony, and thus a short im-
prisonment, which the law may have affixed as a sufficient punishment
for the crime, is changed into an outlawry of the most rigorous kind,
by which the party is put completely out of the protection of the law,
and subjected to depredation on property, to insults, to personal injury,
and, if a female, to the most brutal violence, without the hope of redress.
Here again, as in the case of interest, we find by our present law,
exceptions introduced, founded on reasons which apply with equal
force to the rule. By statute, in England, a conviction for petit lar-
ceny shall not disable the witness; by the court it has been decided,
that the affidavit of a person incapacitated as a witness by conviction
for perjury shall be received as evidence, in defence of a charge brought
against him; the judge, Holt, making this natural reflection" be-
cause he has been convicted of perjury, must he, therefore, suffer all in-
juries and have no way to help himself?" Yet it never occurred to
the learned judge, that this effect which he agreed to give to the con-
victed defendant's affidavit, for a purpose which concerned himself,
and where, of course, the two objections of interest and infamy were
combined, ought to be extended to the case where the interest or the
life of a third person were in jeopardy, and where the convicted wit-
ness had no interest to disguise the truth. Still less did it occur to him
that the very words of his decision would permit the convicted person
(a) Mackender v. Mackender, Hill. 28. Geo. II. M'Nally, Ev. 208.
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to make a complaint for an injury done to himself, or to support the
prosecution by his oath, the only testimony, perhaps, in existence; for
it is only in the case of an affidavit to be used on an incidental question,
that the exception is made: a case which, of all others, ought not to
have been made an exception; that of affidavit, made with deliberation,
in secret, and attended by no opportunity for cross-examination. There-
fore, we have the strongest case in favour of the rule made an excep-
tion to it; and the rule itself applied to those only where there is the
least danger from the admission of the testimony.
Another, and no less incongruous, exception is, that made in favour
of the accomplice, who is every day admitted to testify against the
principal. Here we have interest of the highest kind-the hope, often
the assurance, of pardon-joined to the acknowledged infamy of a
participation in the crime; and yet the witness is heard. For what
reason, if the generale rule of exclusion be a good one, should the ex-
ception be made? Necessity? What necessity? The necessity of con-
victing the accused by false testimony; for it is on the supposition that
it will be false that you exclude it in other cases. If the evidence be
too suspicious to be heard to preserve fortune, liberty, or life, can it be
pretended that there is a necessity for using it for depriving one of
these blessings?
The uncertainty of the rule has been hinted at, as one of the reasons
for abolishing it. To what offences shall it apply? Particular circum-
stances, enumerated in different books, all agree that felony is one
of them. This comprehensive and ill-defined term embraces so many
acts, each employing a different degree of depravity, from treason down
to petit larceny, that it cannot well be conceived that all suppose the
want of veracity in those who are guilty of them, more especially of
a general disposition to utter falsehood or conceal the truth, without any
special motive. To preserve the rule, therefore, with any appearance
of consistency, it must be modified: a line must be drawn between
such offences as suppose a particular proneness to falsehood, and those
which evince only other species of depravity. To have taken the
losing side in a political struggle and have incurred the crime of treason,
certainly does not create a presumption of the disposition to perjury;
and perjury without motive, for the purpose of depriving an innocent.
stranger of his fortune or his life, or for the destruction of his reputa-
tion. We must distinguish and when we come to analyse the different
offences, in order to discover in which of them lies this latent dispo-
sition to mendacity, we shall find it in none, and we shall come to the
conclusion at which I have arrived-that the exclusion, in this case also,
ought to be abolished.
6. One more ground of exclusion remains to be discussed: that arising
from religious opinion. The doctrine on this subject, after having
gone through several changes, is settled as far as any thing depending
on judicial decisions can be settled into this rule, that a disbelief in a
future state of rewards and punishments is the only cause of religious
exclusion. It is certain that this state of the mind destroys one of the
sanctions for the efficacy of the oath ; but that it is compensated by the
additional weight which may reasonably be supposed to be given to one
of the others, the moral, honorary, or penal sanction just as the priva-
tion of one sense adds accuracy and sensibility to the others. The man
who is so unfortunate as not to believe in a future state, will be con-
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285
scious of the disadvantage attending this disbelief upon his reputation,
and will endeavour, by a more scrupulous attention to his conduct and
conversation, to show that his want of faith does not derogate from his
respectability. But, without having recourse to this supposition, of an
increased force in the other sanctions from the suppression of one, ought
we to believe that the man who doubts whether he will be punished in
a future state for false testimony given in this, will, therefore, feel him-
self bound by no obligation to tell the truth; or, to state the position
more truly, will, on that account, be more inclined to falsehood than to
truth? May he not dread the reproaches of his conscience in this life?
May not a moral sense show him the utility and beauty of truth? May
not a sense of honour make him disdain the idea of falsehood? May
not the fear of infamy or of punishment deter him? No, say the in-
exorable exclusionists; we must have every security for the truth of the
testimony, or we dare not trust ourselves with hearing it; or rather,
we must have this and we will dispense with all the other. A man of
profligate character, who laughs at all moral duties; a dishonoured and
notorious liar, who has no regard for reputation; a witness who resides
out of the reach of the tribunals which might bring him to punishment.
for his perjury, and therefore has no fears for the consequences; all these
may be heard; but the man of honour, of integrity, and the most fear-
ful of the temporal consequences of an aberration from truth, cannot be
heard if he cannot believe in the immortality of the soul—a most
unfortunate state of mind, but certainly not one that supposes a want
of veracity. Belief in a future state must arise either from reasoning
on probabilities, or from a conviction of the truth of revealed religion.
Some minds may be so framed as not to yield to the evidence which
most of us think sufficient on these points; but surely an inability
to draw a just conclusion from abstract propositions, does not imply
such a degradation of moral principle as would render it more pro-
bable that, without motive, he would prefer falsehood to truth. The
religious sanction is the only one which, by this reasoning, will secure
the truth. But yet, you will believe a quaker, who rejects even the
form of the oath; yet you will in a thousand instances, as in custom-
house declarations, put no faith in the oath, which is unaccompanied
by the other sanctions, and because little dishonour is attached to their
breach, and punishment rarely follows their violation. If the truth
could be demonstrated, it would appear that the fear of the consequences
in a future state is not half so operative, taken by itself, as the fear of
dishonour and punishment here. Therefore, in itself, this disbelief
does not destroy the credibility of the witness. On the contrary, from
the mode in which alone it can be proved, it must add to his credit.
To avow this disbelief requires some courage. The atheist is a charac-
ter not favoured in society. A repugnance to utter a falsehood, for the
most part, would be the motive for making the avowal; yet, the mo-
ment he has given this evidence of his regard to truth, he is declared
unworthy of belief. If, being an unbeliever, he answers falsely that
he believes, he is a good witness. If he answers truly on this point,
the presumption is, that he will answer untruly to every other question
that may be put to him; for, remember, that whatever proof you
may have to convict him of disbelief, it must all end in that to be de-
rived from his own examination. What he may have said or written
yesterday is no proof of his belief to-day. It is the actual state of
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INTRODUCTORY REPORT TO
mind at the time of examination that must be inquired into, and if
be believes then, he is a good witness; and this state of mind can only
be known from himself.
In itself, then, the exclusion is absurd. In its consequences it is
more dangerous than any we have reviewed. Not only is the unbe-
liever, in common with the witness convicted of crime, put out of the
protection of the law, as to all injuries to his person or property that
require his own evidence to punish or repress; not only in this case,
as in that, is the party entitled to his evidence deprived of it, when it
may be necessary for the protection of his property or his life; but in
this case every kind of outrage may be committed, not only upon the
person who wants the necessary faith, but in the presence of others of
the same description. There is no more risk than if it were commit-
ted before so many statues. All those who, knowing the offender's
guilt, might wish to avoid giving testimony against him, but are unwill-
ing to expose themselves to the punishment of perjurers by false testi-
mony, have the ready means of avoiding the examination-an avowal
of unbelief is all that is necessary.
If it be false, there can be no
detection or punishment, for as it is a matter of belief only, no one can
contradict this assertion.
There is another view in which the inquiry into religious belief,
which must precede the exclusion, appears highly reprehensible. All
kinds of religion are by our laws and constitution put on a perfect
equality. He who believes, he who doubts, and he who disbelieves,
have the same civil rights. Every speculation, as to the existence or
non-existence of a future state, of the probability or duration of rewards
or punishments we may expect there, all the infinite modifications from
mere conjecture to perfect faith, are all so many species of religious
tenets. No one sect has a right to say to another, mine is the true doc-
trine, and therefore I am entitled to temporal advantages of which you
ought to be deprived. But the right of appearing as a witness against
one who has committed a crime affecting the party, is a civil and tem-
poral right; to deprive him of it, for a want of uniformity of faith in
any one point with the rest of the community, is to deprive him of it
for a difference in religious belief, which is contrary to the constitution
and laws.
For these reasons, all exclusions of particular persons, as witnesses,
are abolished by the code, except in the instance of persons insane, and
the analogous one of infants whose minds are not sufficiently developed
to give information on the subject inquired of. But in these cases
modifications of the present law are introduced, which require the
attention of the general assembly.
As the law now stands, the court decides on the fact which is to
cause the exclusion of the witness; and, although the jury may be quite
convinced of the sanity, or maturity of judgment of the witness, he
cannot be heard, if the court believes him either to have lost, or not
yet to have acquired, the intellectual powers necessary to distinguish
and relate the truth. By this code the determination of these questions
is vested in those who are to determine the principal question; they
are to examine the persons said to be insane, and, if they think it ne-
cessary, other witnesses. They are also to examine the infant, and to
determine, not by the usual inquiry, whether he understands the nature
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287
of an oath, but, by questions which may satisfy them "whether his
faculties are sufficiently developed to receive correct impressions of
the fact relative to which he is interrogated, to relate those impress-
ions correctly, and to feel the obligation of doing it truly." These
are the only cases of total exclusion. Those who, under certain cir-
cumstances, cannot testify, are slaves, in cases affecting free persons ;
counsellors and attorneys, in the cases before mentioned; priests of the
Catholic religion, in cases of religious confession; and parties to the
suit, under the modifications contained in the code, and hereinbefore
fully explained.
The constitution also creates another partial exclusion, or rather pri-
vilege, which a witness has of refusing to give his testimony, when-
ever the answer to a question put to him will make him liable to pro-
secution for a crime. It is true, that the words of the constitution
only extend this privilege to criminal prosecutions and to the accused;
but the incongruity of forcing a witness to do that which the accused
was protected against, seemed to call for the provision contained in the
code, which, however, modifies the rule, as now understood, so as to
restrict the objection to such answers only as would furnish evidence
against the witness on a prosecution for a CRIME.
To appreciate properly the reduction of the exclusionary rules to this
narrow compass, we must not only consider the advantages it will have
in the investigation of truth on the trial, which, it is hoped, have been
sufficiently demonstrated; but we must also consider the effect it will
have in simplifying the law, rendering a recourse to it less expensive,
giving it certainty and stability, and diminishing the number of suits.
That these consequences must necessarily follow, will be apparent to
the most hasty observer. Whoever has opened one of the English
treatises on evidence; whoever has looked over the index to a volume
of reports, or into any of the abridgements, and examined its contents
on that subject, will have seen how large a proportion is occupied with
cases in which the competency of witnesses is discussed; not only for
causes which would disqualify generally, but for those which make
them incompetent to particular points, or in particular suits. Most of
the arguments depending on nice, and often fanciful, distinctions, and
the decisions doubted, or confirmed, or overruled, according to the
judgment or caprices of a succeeding judge; and sometimes, we may
venture to say, according to his respect for, or jealousy of, his prede-
cessor(a). But when the rule is abolished, all the exceptions go with
it, and the simplicity, which we have claimed for the new system, is
apparent. Its certainty and stability are derived from the same source.
When the law is simple and precise, the courts can make no exceptions,
as they did when they themselves legislated on the subject; and from
those exceptions arose all the uncertainty and instability of the law of
evidence. I need scarcely add a word to prove another of the character-
istics I have ascribed to this change in the law; that a recourse to it
would be had with less expense; for a few short articles, and a single
page, contain all that must now be sought (and frequently without any
certainty of success) in many volumes, and numerous decisions: its
probable effect, in diminishing the number of suits, has been already,
and it is hoped successfuly, discussed.
(a) See, in the English Reports, the numerous cases before lords Kenyon and Mansfield.
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INTRODUCTORY REPORT TO
Having determined the few cases in which persons are actually or
partially excluded from appearing as witnesses, the code next regulates
the manner in which they are to be examined; and here the entrance
into a boundless field of debateable ground is prevented by a provision,
that, with the exceptions contained in the articles that have already
been examined, and the single additional one in relation to leading
questions, every interrogatory, pertinent to the issue, may be put, and
must be answered. No more debates as to what is proper evidence in
one cause and what in another. The simple inquiry is, will the answer
to the question elucidate the fact in dispute? No rules are given on
this point, because none can be framed that would direct the judge
through the infinite variety of circumstances in which they must be
applied. Whether the question proposed, therefore, is pertinent to
the issue or not, is of necessity left in every case to the discretion of
the judge.
Leading questions, or those which suggest facts to the witness, are
forbidden; but what shall be deemed such is again, of necessity, left to
the decision of the court, but with a general direction not to prevent
suggestions necessary to recall facts to the memory of the witness when
the transaction is remote-when from its nature, it was not likely to
have made a strong impression on the mind of the witness; or when,
from age, indisposition, timidity, or other cause, his mind is weakened
or disturbed.
The witness is also permitted to refresh his memory by written notes
made by himself, or another by his direction; and in all cases, when his
testimony relates to accounts or calculations, he is permitted to refer to
the papers or books containing them.
He is put under the protection of the court, to guard against harsh
language, or what is called browbeating; and provision is made for
giving him time for reflection when necessary, and for rectifying errors
in his testimony.
He who alledges a fact judicially, must, if it be litigated, prove it;
but if, in the same manner confessed, no proof need be adduced. If
neither confessed nor denied judicially, it must be proved; the oath of
the party alleging, in this case, forming presumptive proof.
The rule requiring that the best evidence of the fact alleged shall,
in all cases, be produced, is modified and restricted to the following
cases:
1. When a positive law has declared, that to give validity to any
species of contract, it shall be made in writing, then no other proof shall
be admitted; unless it be proved, that the writing was made, but has
been casually lost or destroyed, or, without the fault of the party, placed
without his reach.
2. When scriptory evidence of the fact has been made, and was in the
possession of the party; unless it has been lost or placed out of his reach,
in the manner above stated.
3. When positive law has declared certain evidence necessary for the
proof of the facts designated in the law.
4. When the fact which is alleged, if true, must have appeared by an
authentic act.
In all other cases where evidence shall be produced, which the judge
or jury shall deem inferior to other evidence which is not produced, it
shall, if legal evidence be heard, and the nonproduction of the other
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289
shall operate as presumptive evidence, to have the weight it may deserve
according to the circumstances of the case, against the party failing to
produce it.
These provisions were deemed necessary to avoid much useless and
perplexed investigation, as to the relative authority of evidence, which
frequently causes great injustice in the exclusion of testimony, and always
much perplexity in the argument. The first of them was drawn with
the view to prevent the liberties that are taken by courts with the legis-
lative will, as expressed in such laws as are known by the name of the
Statute of Frauds in England, and the analogous provisions in the civil
and other codes of law sometimes enforcing the written law accord-
ing to its terms; at others, creating exceptions, which weaken, if they
do not destroy, its efficacy. Whether the Civil Code itself ought not
to contain some exceptions to the strictness of this rule; and whether,
while it declares, in general terms, that the omission of formalities shall
vacate the act, it should not still provide for the cases where it was not
in the power of the party to comply with them-are questions worth
considering when the revision of that code shall again come before the
legislature. In the mean time, its will, clearly expressed, must be
obeyed. It is better that individuals should suffer from the operation
of a law, acknowledged to be bad, than that the remedy should be ap-
plied by unconstitutional means. The one is a partial, the other a general
and fundamental evil.
The second modification of the rule provides for cases in which the
parties have made evidence of their intentions, and reduced the same to
writing; in which case testimonial evidence cannot be produced, with-
out proving the loss of the writing. In this the present law is not
changed.
The two other cases need no explanation.
Another rule of evidence productive of much uncertainty of decision,
is that which declares, “that parol evidence shall not be admitted against
or beyond what is contained in a written act, nor of what may have
been said before or at the time of making it." To this, important
qualifications are added by the system now proposed. It is confined
in its operation exclusively to writings containing obligations or dona-
tions, and to testamentary dispositions. These, it is supposed, will
comprehend all the cases in which the parties may be supposed to have
expressed all they intended on the subject matter on which they wrote.
Error, fraud, violence, threats, or any other circumstance that, by the
provisions of the Civil Code, would avoid or modify a written contract,
evidently ought to be proved by extraneous evidence. Although no
party, except in the designated cases, shall be permitted to qualify by
testimonial evidence that which he has deliberately committed to wri
ting, yet, as his will constituted the obligation of which the writing is
only the evidence, the opposite party may resort to that higher evidence
of will, which resides in the mind of the other, by calling on him to
declare, on oath, what was his true meaning. Circumstances are pointed
out which are necessary to be considered, whenever for the purpose of
defeating a contract, an allegation is made of error, fraud, violence, or
threats; but the effect they are to have is left to the discretion of the
judges of the fact.
The sanction of an oath, or an equivalent affirmation, is required for
2 M
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INTRODUCTORY REPORT TO
the reception of testimonial evidence, from which it follows, that one
witness, who is himself under that sanction, ought not to state what
another had said who was under no such obligation to tell the truth, and
whose veracity cannot be tested by cross-examination, or the other
means of discovering it. But there are necessary exceptions to this
rule, and the code has not left them to be ascertained by judicial legis-
lation. They are the following.
A witness may declare what the party to the suit, his agents, or other
persons, who could have bound him by their contracts, or those, under
whom such party claims, have said, when such proof is required by the
opposite party. What has been said relative to the matter in dispute in
the presence and hearing of one party to the suit, may be given in evi-
dence by the other, as a foundation for a presumption to be drawn from
what he said, or did, or from his silence. What a witness has said when
he was not under oath may be proved, to show that it was consistent or
inconsistent with his testimony. If a witness has been examined on a
former trial between the same parties, for the same cause, what he has
said may be related by another, if such witness be dead, or his testimony
cannot be procured. In cases of homicide, what the deceased has said,
after receiving the wound, in relation thereto, may be given in evidence,
if his deposition could not, from circumstances, have been taken.
When the declarations of a party, or a witness, under the first or
second of the exceptions before mentioned, are given in evidence,
any thing said by another person, which is necessary to contradict
or explain what was said by such party or witness, may be given
in evidence. As proof of the hand-writing of a witness, who is dead or
absent, may, in certain cases, be admitted as a presumption that he would
not have signed if he could not prove the execution; so any material
declaration of such witness, to rebut this presumption, may be related.
In cases not depending on scriptory evidence, a party is permitted by
the code to give evidence of what he himself said or did at the time of
the transaction, in relation to the matter in litigation, in order to explain
his intentions; but in this, as in other cases, he may be examined on the
trial by the adverse party. There is a species of evidence that is only
acquired by information from others; it is that usually called a fact of
public notoriety-such as pedigree, and other facts of the same nature.
These are enumerated in the code, and the proof of them allowed.
A short section declares, that the rules for receiving the oral declara-
tions of a witness, apply to their examination on interrogatories; and
direct, that, whenever the deposition of a witness is taken in writing,
the question as well as the answer shall be written, and the answer re-
corded as given.
This finishes all the provisions of the code in relation to testimonial
evidence.
The next head is that of scriptory evidence, which includes all kinds
of written proof, except the examination of witnesses when their
evidence is reduced to writing; the term SCRIPTORY having been used
to designate this division, because that of written evidence would have
comprehended testimonial evidence, when reduced to writing, as un-
der our code of practice it always may be.
To argue the advantages of this species of evidence, to speak of its
certainty and durability, would be a useless task, when addressing the
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291
legislature of a state in which those advantages have been so wisely
secured by laws directing its employment in so many instances, and
under such a variety of sanctions as in this. Of writings, which may
become matter of evidence, some purport to express the will of those
by whom they are made; others are only declarations of facts. Of
the first kind are those which are called the acts of the parties whose
will they purport to declare. Of the second, are the attestations of
public officers, declaratory that certain of the acts were really made by
those parties; and also, the written depositions of witnesses. With
the last, the depositions, we have nothing, as has been said, to do in
this division. The mode of taking them, and their effect, and the persons
by whom they may be made, are pointed out in the Code of Procedure,
and in the former part of this report. The other kinds of scriptory
evidence, properly so called, are divided by the code into two kinds,
authenticated and unauthenticated.
I. Authenticated acts are defined to be "such instruments in writing
as are attested by a public officer, legally authorized for that purpose in
the form prescribed by law." It will readily be seen that the evidence
here is of two kinds. The expression of the will of the party, as con-
tained in the act, and the declaration of the attesting officer, that such
writing does contain the will of the party, and to avoid any misunder-
standing of the effect of such evidence, the code provides, that it
shall be proof only of that which is specially attested by the officer
to have been done in his presence, and nothing more, and exemplifies
its intent by some of the most common cases in which this species of
evidence is produced. A bill attested by the signatures of the president
of the senate, of the speaker of the house of representatives, and of the
governor, is an authentic act; but the signatures prove only that the
bill, to which they are affixed, has been passed by the two houses re-
spectively, and has been approved by the governor. The signature of
the governor to a proclamation, under his seal of office, offering a re-
ward for apprehending a person accused of murder, is authentic evidence
that such proclamation was issued on the day it bears date, that com-
plaints were made to him of the commission of the offence, the flight
of the defendant, or any other fact which he certifies to have been
done in his presence; but it is not evidence that the crime was actually
committed, or that the party fled.
The code divides authentic acts into four kinds : legislative acts; re-
cords of courts; records of the different executive governments, made
in the legal administration of its different departments, which are de-
clared to be authentic acts; and written instruments, made in the pre-
sence of, and attested by, such public officer as is for that purpose
commissioned according to law, and purporting to testify what is said,
done, or contracted by those whose acts they are.
1. A section directs the manner in which legislative acts are to be
proved. In this the present law is not changed, as now the production of
the original of an attested copy, or of the statutes printed by the state
printer, are considered good evidence. The provision that an error
in either of the kinds of copy may be alleged and proved by collating
them with the original, is also, I apprehend, the law at this time; but
it was thought advisable to insert it in terms. The mode of proof of
public and of private acts, is declared to be the same. The court is
!
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directed, ex officio, to take notice of public acts, and to carry them
into effect, whether pleaded or not; but the party relying on a private
act for the support of a right, or the privilege of an exemption, must
allege and prove it.
Private legislative acts are those which concern designated indivi-
duals only. All others are public acts. All acts of incorporation, made
for regulating the police or local government of any part of the state;
for the establishment of the banks; for authorizing the imposition of
a toll, of tonnage, wharfage, or other duty; for the establishment of
hospitals, or other purposes of charity, or the promotion of religion,
education, or science, are specially declared to be public, and all other
incorporations to be private acts. But it is provided, that this enu-
meration is intended solely for the purposes of this title in the code,
and does not affect the nature or definition of corporations established
by law.
2. Judicial records are, in a section under that title, defined, and the
mode of authenticating them in the several cases of their being those
of a court in this state, in another state, or in a foreign country. A
new provision is introduced to guard against surprise and fraud. It
directs that whenever the certified copy of a foreign judgment is intend-
ed to be produced as evidence, it must be filed a specified time before
the trial, and notice given to the opposite party; and if he shall object
to the introduction of such copy, the party introducing it must have
it collated with the original and proved, either by a witness or on com-
mission; and that if the copy filed shall be thus proved to have been
a true one, the additional expense shall be borne by the objecting party.
The effect of judgments, in other states of the union, or in foreign
countries, as evidence, is declared to be the same as is directed in the
code, in the chapter on Resjudicata, in relation to judgments in this
state. But it is specially provided, that no judgment rendered in a
suit, commenced by a proceeding in rem, whether by attachment or
otherwise, shall have any effect of the resjudicata, except so far as re-
spects the thing seized, unless the party have appeared either in person
or by attorney and defended the suit.
To avoid the enormous expenses attending the introduction of pro-
ceedings in admiralty, when necessary as evidence, it is provided, that
whenever the object is to prove a condemnation in a foreign court of
admiralty, no other part of the record but the libel and condemnation
need be produced for that purpose; and that no evidence taken in such
cause shall be evidence between the same parties of any other fact than
that in contestation in such cause.
3. The next section provides for what is thought to be a desideratum
in our present law. It gives an enumeration of the acts of the executive
government which are to have the force of authentic evidence, and the
mode of their authentication. This needs no elucidation. A reference
to the section itself is all that is necessary, both for its purport and for
the reasons of the different provisions it contains. It may be proper,
however, to remark, that while special laws provided for giving the force
of authentic acts to the records of courts and notarial proceedings, the
equally important documents of an executive nature were left for their
authenticity to the discretion of the courts; which admitted or rejected
them, and gave what degree of force to them that their judgment directed,
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293
without any fixed rules, which, for the first time, are established by the
proposed code.
4. Notarial acts, and the various provisions necessary to establish their
validity, provide against their abuse, designate their effects, and point
out the cases in which they may be declared void, are necessarily a
most important subject in the Code of Evidence. Forming, as they do
by our law, the principal means by which sales, contracts, donations,
testaments and declaratory dispositions, in all their various forms, are
to be witnessed; every provision in relation to them ought to be gener-
ally and minutely known; and for that purpose should be clearly and
particularly expressed. This it has been the endeavour of the reporter
to do in the three subsequent sections of this chapter.
The first of them describes the nature and prescribes the requisites of
a notarial act, in which there is little to claim particular attention, as
the provisions are chiefly those contained in different laws and decisions
on the same subject, collected in one view, and enforced by precise
enactment, which a reference to the section will fully explain without
comment.
The same observation, in substance, may be made on the subject of
the next section, which treats of the effect of notarial acts, in relation to
those who are parties to them; and in the few cases in which they may
bear upon the rights of others, the laws and decisions on the subject
are embodied and reduced to short, and, it is hoped, clear precepts,
which are illustrated by examples, and some new provisions are intro-
duced which require no explanation.
"For what causes and in what manner notarial acts may be declared
not authentic," is the title of the last section relating to this matter.
The silence of our present law on this important topic, required the
greatest care in the reduction (a) of this part of the code, and imposes
the necessity of some elucidations.
The distinguishing characteristic of a notarial act, that it is authentic
evidence, in other words, that it is conclusive evidence, against those
who are parties to it, rendered it necessary that many formalities should
be required in passing it to secure the parties, as well as the public,
from imposition. These are minutely directed in a section which has
already been referred to. No officer at all attentive to his duty, no
party not entirely negligent of his interest, can mistake them. When
they are not attended to, a presumption will naturally arise that they have
been omitted for some sinister end, and the natural corrective would be
punishment. This, as regards the officer, has been provided for by the
Code of Crimes and Punishments, in the shape of a personal penalty. As
respects the parties, the remedy is not so clear. To inflict a punishment on
both would be clearly unjust, for one must be the party injured. To in-
flict it on either would, in many cases, have the same character. The party
really consenting to the omission, may be the one injured by the neglect;
while the other, naturally careless of what it was the peculiar interest of
the one with whom he contracted to observe, would overlook the
(a) This word is not English, but I have ventured to employ it, from the absolute want of
one to express the act of preparing for publication a work, neither entirely compiled from
pre-existing materials, nor entirely of original composition, but like the code I now present.
If there be an equivalent term in the English language, it does not occur to me.
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omission of formalities, by the neglect of which he could only gain.
To illustrate my meaning by an example. A sale is made before a
notary, who does not call on the witnesses required by law to sign the
act. The notary is justly punishable for a neglect of official duty; but
a personal penalty on either the purchaser or seller, would be unjust:
on the purchaser, because he is the loser by his defect of title; on the
seller, because, having received his consideration, he would leave the
examination of the conveyance to the purchaser, contenting himself
with the perusal of the act, to see that he conveyed what he had a right
to convey. As to the parties themselves, some other provision was
necessary to excite their attention to the observance of forms, rendered
necessary by the general policy of the law. The means for enforcing
the provisions of the law, which first present themselves, are those
which operate on the act itself. The contract depends on the consent
alone of the parties; the means of enforcing it on the legislative will.
To this there is no injustice in annexing conditions. "I will provide,"
says the lawgiver, an officer who shall draw your contracts, who
shall give them legal forms and put you on your guard against
imposition, who shall record and preserve them, who shall furnish
you with copies when you want them, which copies shall have all
the force of originals; but it is on condition that the plain rules.
which I prescribe, to guard against fraud, error and confusion, shall
be strictly observed. It is your interest as well as your duty, if
your intentions are correct, to observe these rules on your parts, and to
see that they are observed by those with whom you deal. If you do
not, the condition is broken, and you lose the advantages you would
have had by observing them. I will punish my officer when he wilfully
or negligently omits to perform his duty; but unless there is evidence
of fraud against you, the only penalty you incur is the loss of that
character to your contract which the observance of the rules would have
attached to it. Prove your contract in any other way, if it be a legal
one, my laws do not affect them. I will even allow you to consider
the assent given to it by your signatures as binding; but it cannot be
enforced as an authentic act." Such language seems to be appropriate
to the occasion in the mouth of a just legislator, and its substance is
contained in this part of the code. A notarial act, wanting any of the
enumerated formalities, may be used as an instrument under private
signature, if it have those of the parties; but it is not authentic.
The omission of a necessary formality, which ought to appear on the
face of the instrument, is one of those facts which the judge is em-
powered to ascertain by his own inspection, without other evidence.
Other omissions, or defects, which would destroy the authenticity of
the instrument, may be proved by other evidence, the nature of which
is designated in the code.
The cases in which notarial acts may be declared not authentic, for
causes not apparent on the face of the instrument, are specially enume-
rated. For any of which, or for any such defect appearing on the face
of the instrument, as is by this section declared to destroy its force as
an authentic act, it is provided, that a suit may be brought by any one
interested, in which suit the objection to the act must be particularly
set forth, or the party may rely on such objection as a bar to any suit
commenced upon it; but in every such case, as well as where the suit
THE CODE OF EVIDENCE.
295
is brought to have the act destroyed, the petition or answer, and the
causes for considering it defective, specially stated. Provision is also
made for the production of the instrument and giving notice of the ob-
jections to it, when it is used for some collateral point in a cause, and
is not the foundation either of the suit or of the defence.
Another article specifies the cases in which authentic acts, not nota-
rial, may be declared invalid. This, with the provision that the sen-
tence of a court, declaring any act to be invalid shall be noted in the
margin, both of the copy produced and of the original, concludes what
is contained in the proposed code on this subject; but I cannot dismiss
the notice of it, in this report, without felicitating the legislature on
our finding already established, a system so admirably adapted to its
purpose as that of transfers by notarial acts. With the firmest convic-
tion of its advantages over every other intended for the same ends, it
would have been difficult, if not impossible, without the experience we
have had, to have forced the same conviction on the people: and the
maintenance of the defective system of registration, which prevails in
all the other states with more or less of inconvenience attached to each,
is a convincing proof of the difficulties we should have had to encounter
if we had been under the necessity of removing the one of these plans to
make way for the other.
II. We come now to consider scriptory evidence, of less authority
than that which is declared to be authentic. This inferior evidence is
of two kinds; that which is attested by the signature of the party
whose act it purports to be, and is called an act under private signa-
ture; and all other written evidence not so attested.
1. The difference between authentic acts and those now under conside-
ration, with the reason for their different weight in the scale of evidence,
is explained in the code. No writing, it is said, is in itself evidence
of the truth of that which it contains: it shows that certain covenants
are written, and that certain names have been subscribed to them; but
it contains no proof that those names were subscribed, or that those
covenants were agreed to, by the parties. To give them any validity,
there must be some extrinsic evidence. This evidence, in authentic
acts, is supplied by the credit which the law attaches to the certificate
of the public officer, and to the seal of his office, which the courts are
bound, ex-officio, to be acquainted with. But to acts under private
signature no such credit is given. The production of them does not
even raise a simple presumption of their validity. Proof of their exe-
cution is required. This proof, in ordinary cases, is either the testi-
mony of a subscribing witness, or of one who knows the handwriting
of the party. The code has introduced another and more simple mode
of proof, to be used at the discretion of the party. It directs that
whenever a suit is brought on an instrument made under private signa-
ture, the original shall be annexed to the petition for the inspection of
the party who shall be summoned to acknowledge or deny the signa-
ture. If it purport to be his own, he must answer directly to the
question, under the penalty of having an evasive answer construed as
a confession. If the signature do not purport to be his own, but that
of some one whose engagement would bind him, and he is acquainted
with the handwriting, he must answer whether he knows or believes
the signature to be genuine. If he is not acquainted with the handwriting,
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he must say so. If acknowledged, the instrument then becomes an
authentic act. But evidence may be received of any fact which would
show that, from any cause, it ought not to be enforced. If not ac-
knowledged, proof must be made as in ordinary cases. These different
effects are particularly set forth in the code, as well as the circum-
stances under which recourse may be had to proof by comparison of
hands, and the mode in which such evidence is to be received.
The perfection with which the handwriting may be imitated has led
to a provision that a comparison of hands alone, unsupported by other
circumstances, shall not of itself be sufficient evidence, where the hand-
writing is denied. The provisions of this chapter are but a develop-
ment of the one which has been already sufficiently commented upon,
that which requires the oath of the party in support of his defence.
Few men would have the hardihood to deny their own signatures, even
without oath, if it were not for the pernicious practice of throwing the
defence of a suit upon the attorney, who, in the name of his client,
every day, without any blame attaching either to his client or himself,
asserts what they both know to be false, by denying a signature which,
in a few weeks, is proved or confessed to be true. According to the
plan proposed, the party must speak for himself; the instrument is
offered for his inspection, and he must, first by his answer, and after-
wards, if required, openly, in the presence of his fellow-citizens and
the magistracy of his country, on his own responsibility, make his
declaration of the truth. Thus, independently of the gain, on the score
of public justice, the members of an honourable profession are no longer
made the instruments of falsehood; and, if any is asserted, the risk, the
shame and the odium, is incurred and borne by those to whom it pro-
perly belongs.
Another and a very full chapter relates to copies of written instru-
ments as evidence.
It is enacted that attested copies of authentic acts are exceptions to
the rule, that transcripts are not to be received when the original can
be procured. In favour of copies of other acts no such exception
exists. The different kinds of copies invested with different degrees
of authenticity, are pointed out, and a mode is provided for giving a
certain degree of authenticity to acts under private signature, which is
new and requires particular attention.
Whenever the holder of an act, under private signature, fears the
loss of the instrument, or of the evidence by which he expects to sub-
stantiate it, he may, at his own expense, present a petition to a court
of competent jurisdiction, praying that the party who has signed the
instrument may be summoned to appear at the office of some designated
notary, to witness the registry of the act.
If the party summoned answer that he denies the signature, its au-
thenticity is tried as in common cases, and if found for the plaintiff,
the registry of the act shall be decreed with costs. If he confesses the
signature, or do not answer, the notary, on seeing a certified copy of
the record, shall proceed to register the act by making a full copy on
his records. Copies, thus authenticated, are full proof of the signa-
ture, but do not entitle the party to prompt execution, as is the case
with authentic acts. They are called copies in form, but cannot be
produced without proof that the original is lost or destroyed. On proof
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297
of loss only, security is required against the appearance of the instru-
ment in the hands of a bona fide holder, after public notice. When
destruction is proved, no such security is required.
Acts under private signature may also be authenticated and registered
by the consent of the parties, testified by their signatures in the pre-
sence of the notary, so as to produce the effect of copies in form.
Even without any judicial order, and without the consent of the
party signing an act under private signature, it may be transcribed in
his register by the notary at the request of the holder. This is called
an informal copy, and can serve only the following purposes: to
become the foundation for a prescriptive right from the time of the
registry; when the original is produced, but the time of its execution
is in dispute, to verify that execution up to the time of its registry;
after ten years' uninterrupted enjoyment under it, it has the force of an
authentic act; and, connected with other circumstances, it forms pre-
sumptive proof of the execution of the original and of its contents.
The originals of acts under private signature may also be placed in
deposit on the records of the notary, preceded by the declaration of
the depositor, signed by the parties making the same, and attested by
the notary. Attested copies of such act are authentic evidence against
all who have signed the same.
A concluding section of this chapter directs the mode in which acts
under private signature should be signed and attested; declares that
they may be made the evidence of all kinds of obligations or declara-
tions, except those that are specially by law declared to be made by
authentic acts; and contains provisions to guard against fraud and impo-
sition upon the illiterate.
2. Writings, even not signed by the parties, may furnish evidence of
the presumptive kind. This species of evidence is of two descriptions.
Those which appear to have been prepared for signature, but, not having
received it, are imperfect; such as wills, contracts, declarations of trust,
&c., and to those which from their nature were not intended to be
signed; of this kind are entries in books, family records of births, &c.
Writings of the first kind are never admitted as direct proof of the
disposition of which they would have been the evidence, had they been
perfected. They may be presumptive evidence-first, of the intent to
make the contract or disposition, when such intent is material to the
issue; and secondly, of the truth of any enunciation in the writing, or
of the knowledge which the party had of such fact. But in no case
can such writing be admitted at all, unless it be in the hand-writing of
the party against whom it is offered, or proved to have been made by
his direction, or approved by him after it was made.
Writings of the second kind, when made by the party, by his direc-
tion, or approved by him, may also be admitted as presumptive proof
of that which they enounce. But in both cases, the party may be ad-
mitted to state, on oath, the circumstances under which such writings
were made, and to explain their intent.
All the kinds of scriptory evidence we have been considering, are
such as were made by the parties against whom they are offered,
or by their direction. Of another description are those writings, in-
cluding printed papers and engravings, which are made by others.
These are:
2 N
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INTRODUCTORY REPORT TO
Historical works to elucidate any public fact that may become material
in a litigated case.
Books of art or science-when any thing appertaining to the branch
of learning of which they treat is in dispute.
Maps or plans, to elucidate questions of locality; but these are sub-
ject to restrictions contained in the code.
Accounts stated, or calculations made by persons who prove them to
be correct.
If on
Nautical or other almanacs, whenever material to the issue.
This finishes a review of the important title of Scriptory Evidence:
a source from which the most contradictory effects have flowed.
the one hand it gives the means of precision and permanence to engage-
ments, those very qualities make it, in many instances, the instrument
of fraud and imposition upon ignorance. Its quality of precision makes
verbal explanation in most cases dangerous, and the rectification of error
inconsistent with rules which it would be improper, in general, to violate;
and its permanence makes it outlast the evidence, which might serve to
show the causes why it ought to be declared invalid even in the few cases
where such evidence would have been permitted. Its superior rank in
the scale of evidence, too, makes it a stronger temptation to fraud, in
the shape of forgery. These and other disadvantages should be con-
sidered, and, as far as possible, counteracted by legislation. No means
of effecting this desirable end appear to promise such good results as a
wise system of registration; and of all those systems, none appear equal
to that which is in force in this state. The provisions contained in the
proposed code have been framed for the purpose of bringing it nearer to
that perfection to which, by adopting the plan for gradual improvement
pointed out in the beginning of this report, it is devoutly hoped it may
answer.
In no other state is any provision made to counteract a fraud, which
has been practised, and will be practised, in spite of all general laws
against that offence. This is the process: a deed is forged, or fraudu-
lently altered; it is proved by a perjured, mistaken, or ignorant witness,
before a magistrate-in some states, even before a magistrate residing
under another jurisdiction, and therefore not amenable to its laws; this
magistrate allows it to be recorded; it is transcribed on the record, and
returned to the party, and by him destroyed. The copy from the re-
cord is then evidence; and the means of detection, by showing the
signatures to be forged from a comparison of hands and other circum-
stances, is lost. In our system, which ought to be examined, and deserves
to be imitated by the other states, no such frauds can be committed.
Publicity is secured in all cases in which the general welfare requires
it; secrecy provided for, when the public interest will not suffer; per-
manence and security given to the originals of all important papers; and
imposition upon the ignorant and illiterate prevented by the scrutiniz-
ing supervision of a public and responsible officer.
A short title of one chapter contains all that seemed necessary relat-
ing to substantive evidence.
When we reflect that from the very definition of this kind of evi-
dence it must always be supported by testimony, to show the connexion
of the object produced with the circumstances of the case; it will be
evident, that it must be governed by the rules laid down in relation to
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299
that kind of evidence which serves to introduce it. A few illustrations
and examples are given in the code to give a full understanding of the
nature of this evidence. The mark on a tree coinciding with that stated
by scriptory or testimonial evidence, in cases of disputed boundary, is
substantive evidence of a land-mark. The number of concentric circles
in the wood that has grown over the mark, is substantive evidence of
the number of years that have elapsed since it was made. Yet the mark
itself is no evidence, unless supported by proof of the circumstances under
which it was made.
Having considered all the divisions of evidence in relation to the
source from which it proceeds, we come now to consider it in relation
to the degree of weight it is calculated to have in producing that con-
viction in the mind, which is the object of all judicial evidence. The
divisions in this view, and in the ascending scale, are, as we have seen,
presumptive, direct and conclusive. But for one consideration this
division would not be necessary, except for developing the nature of
evidence, not for directing the mode of its admission; because, convic-
tion of the truth, being the result of an intellectual operation, the degree.
in which evidence of any kind is to operate can never be prescribed;
and it would, therefore, have been proper only in a theoretic view to
have indicated these divisions, but for certain positive enactments which,
forming part of our civil code, it does not come within the intent of the
legislature to alter or repeal by this code. These enactments declare
what evidence, in particular cases, shall be considered as presumptive,
and what others conclusive testimony. This can, in effect, be no more
than directing what judgment shall be given when particular testimony
is adduced; because, as has been said, no law can control the operations
of the mind. Yet as the effect of the different descriptions of evidence.
is directed, it became necessary, in a code on that subject, to give these
divisions a place. In another point of view, also, it would seem to be
proper. The authority of nature, as well as that of positive law, has
decreed that on a well organized mind, all events happening according to
her invariable course, should be considered as true; and allegations of
fact, contrary to such course, as false; hence a second source to which
we can refer conclusive, and in some instances presumptive, evidence.
These considerations have induced the insertion of chapters correspond-
ing to the three degrees of evidence which have been enumerated.
1. The first of these, presumptive evidence, is of two kinds, which can-
not be brought under the same general definition: the one, simple pre-
sumptions, arising from the operation of the mind of the judge drawing
from the existence of one fact, which has been proved, the inference
that another, which has not been proved, exists also; the other, legal
presumptions, are those which are made by the law itself, and which
the judge is forced to adopt, whatever may be his own conclusions
from the facts. Illustrations of the former are given in presumption,
drawn from the structure of the human mind; such as that a man of
good character will not do an unworthy act-that a mother will not
abandon her child—and, from the common course of business, that if
the obligation be delivered to the debtor, the debt has been paid. As
examples of legal presumptions, are given the following, which are
directed by law that he who has possessed real estate for a year, is
the owner; and that when no time is expressed for the continuance
:
300
INTRODUCTORY REPORT TO
of a predial estate, it shall be deemed to have been intended for a year-
The effect of these presumptions is directed to be, that the fact pre.
sumed shall be considered as proved, unless the contrary be shown by
other evidence.
Presumptions can only be raised by legal evidence; therefore, noth-
ing can be the legal foundation for a presumption but that which can be
legally given in evidence; and it is further provided, that simple
presumptions must be founded, first, on the establishment of some fact
by legal testimony; secondly, by such deduction from that fact as is
warranted by the usual propensities or passions of men-by the parti-
cular habits or passions of the individual whose act is in question-by
the usual course of business, or by the ordinary operations of nature.
2. Of direct evidence, little more need be said than to give its defini-
tion, which is, that which, if true, conclusively establishes the fact in
question. It, therefore, can give rise to one inquiry only-whether
the fact stated be true; and as this inquiry must be pursued in the or-
dinary form, the rules for conducting it must be sought under other
heads.
3. Conclusive evidence forms a more comprehensive title. Every
species of proof may produce conviction in the mind of the judge, and
any evidence producing that conviction would, in one sense of the
word, be deemed conclusive. But in this code, that term is applied
exclusively to that which is declared to be such by it, or by other pro-
visions of law which it does not alter or repeal.
It may, perhaps, seem inconsistent with the principles on which this
code is founded, for the legislature so far to interfere with judicial
discretion in judging of the force of evidence as to declare, that any
proof shall be considered as conclusive of any litigated fact.
In many
cases, as has been observed, the interference is but nominal; and the
legislative phraseology would be more correct, if, instead of declaring
that such a fact, or such evidence, shall be presumptive proof of such
another designated fact, it were to direct, in cases of legal presumptions,
that when such a fact should appear in evidence to the judge, then he
should give judgment in the manner directed by the law, unless coun-
ter evidence were produced by the opposite party; and in case of
conclusive evidence, that whenever the designated fact should be proved,
he should give judgment in the manner designated, without hearing
other evidence. But in whatever manner the legislative will is ex-
pressed-whether in the incorrect mode of directing the judge what
to believe, or in the more proper manner of directing him what to de-
cide is not so material as to inquire for the reasons why any such
directions should be given in any form. Uniformity in judicial deci-
sions, it will be allowed, is a very desirable object in the exercise of
jurisprudence. By this is meant, the same deductions from the same
facts, applied to similar circumstances. The cases in which this can be
procured by legislative interference, without injustice, are few; and the
probability of the reverse-that is, of different decisions, although the
proof and the circumstances may be the same-is very great; because,
the minds of men being differently organized, there are not many
things in which all would agree. If this be the case, when not only the
evidence but the circumstances of the case on which it is to operate are
the same, how much more is it to be expected where these circum-
THE CODE OF EVIDENCE.
301
stances exhibit shades of difference? Yet there are cases in which, at
the risk of producing particular inconvenience, the general welfare
requires that this uniformity should be preserved; which can only be
done by directing that, whatever may be the opinion of the judge, his
decree shall be rendered in conformity with the directions of the statute,
whenever the evidence it, for public purposes, considers as conclusive,
shall be produced. Without multiplying examples, that of the
authentic act may sufficiently illustrate what has been said on this sub-
ject. The authentic act, as we have seen, is conclusive evidence of
the truth of all that is certified by it to have been done in the presence
of the public officer, before whom it has been passed. Different judges,
from different views of the subject, might not receive an equal convic-
tion of the truth of what is declared by it. To such it would not be
conclusive evidence. There would, then, be no uniformity of deci-
sion on the validity of such instruments; but public convenience and
utility require, that the holder of such an act should rely upon the
faith of the officer's certificate; therefore, the law wisely declares, that
it shall be conclusive testimony, although, in some instances, careless-
ness or ignorance may have consented to its execution, when it did not
contain the stipulations that were intended. In this, however, as in all
other cases where evidence is declared to be conclusive, provision is
made for annulling the act whenever fraud, error or force has inter-
vened. So the record of a judgment is conclusive evidence that the
party in whose favour it was rendered, was entitled to the relief which
it purports to give. Yet the judgment, in some particular case, may
have been unjust, and the judge, before whom it is produced as evi-
dence, may be convinced that it was so. But the individual interest,
in this case, must be sacrificed to the stability of the general rule, it
being more expedient that one unjust judgment should be carried into
execution, than that all judgments should be open to contestation,
whenever they were produced as evidence of the claims which they
have sanctioned.
This code only refers for illustration to some enactments belonging
to the Civil Code and other general laws, by which certain evidence is
declared conclusive. It does not detail them, but it enforces their pro-
visions; shows that the objects they are intended to attain are to
diminish litigation and lessen the temptations to perjury; and divides
them into positive enactments for the purposes just mentioned, and those
which are declaratory of the usual course of nature. Examples of the
first are offered in the authority given to judgments, to authentic acts,
and to judicial confessions; and of the last, in the provision of our
existing law, that the birth of a child, more than three hundred days
after the death of the husband, is conclusive proof that the child is not his.
In the enumeration of evidence, declared to be conclusive, the item
of judicial decrees is the most important, both for the frequency of its
occurrence, and the difficult questions to which it gives rise. A whole
chapter is devoted to this subject. It contains few provisions entirely
new; but, it is believed, that the several sections, directing what judg-
ments are valid as res judicatæ—which cannot have that effect, and
against whom they may be given in evidence, will obviate many of the
difficulties that have hitherto attended this subject; and that, if adopted,
a ready solution will be found to most of the questions to which it has
given rise.
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INTRODUCTORY REPORT TO
Another species of evidence which, under certain circumstances, is
conclusive, arises from the confession of the party. Confession, in re-
lation to the manner in which it is made, is either judicial or extra-judi-
cial. The former, being that which is made in some writing forming
a part of the judicial proceedings in a cause; or when it is made before
a person authorized by law to receive the same, and reduced to writing
in the manner prescribed by law. The latter, are confessions made in
any other manner.
In relation to the matter, confessions are either full, or partial only.
Full confession, is that which acknowledges the fact alleged with all
its material circumstances, so as to leave nothing to be supplied by other
evidence. Partial confession, is that which acknowledges some circum-
stance from which an inference may be drawn, so as to make it pre-
sumptive evidence.
In civil cases, where every proceeding made by the parties is in
writing, and after full deliberation, a judicial confession is declared to
be conclusive evidence, if not recalled, and after a reasonable term for
deliberation shown to the satisfaction of the judge to be erroneous; but
restrictions are added, to prevent vexation by making and capriciously
retracting confessions.
In criminal cases, however, no confession, whether judicial or extra-
judicial, is conclusive testimony of guilt. The reason of this difference
is evident. Insanity, promises, fear, hope of liberty or pardon, may
produce a confession contrary to the fact; and therefore, although the
confession is strong evidence, it is always open to be rebutted by any
other that would lessen its force.
Even the answer of "guilty" to the arraignment is not a sufficient
ground for passing sentence, until the necessary inquiries as to the
sanity of mind in the prisoner and the existence of the other causes,
have been made. When we reflect on the numerous instances in which
men have confessed themselves guilty, not only of crimes which they
had not committed, but which were impossible to be committed by any
one, the necessity of these precautions will be admitted. The inexplica-
ble state of mind which produced, in so many instances, confessions of
sorcery and witchcraft, may take place in other cases, although those
delusions are over.
By the declaration, that no evidence should be deemed conclusive
but that which is declared to be such by law, that which operates as
such by our present law under the title of estoppel, is of course abolished;
but for greater certainty, that effect is declared by a special provision.
A concluding article contains the necessary notice, that nothing in the
code chall be construed so as to dispense with the proof required by the
Civil Code or other statutes, to give effect to certain contracts or testa-
mentary dispositions, or to enforce the registry or recording of acts, or
prove legitimacy, filiation or civil condition. A detail of the evidence,
required in these and similar cases, did not form a part of this code, be-
cause they could not have been inserted without repeating the provisions
of the laws of which they form a part, which would have intermixed
two distinct branches of legislation, required by the policy of our law
to be kept separate.
Before I close the report, it may be necessary to account for an
omission in the work-that of not designating the evidence required or
permitted in each separate species of civil action and criminal procedure.
THE CODE OF EVIDENCE.
303
It is easy, however, to show that this would have been unnecessary and
injurious to the simplicity of the plan that has been adopted.
By our excellent system of civil law, a plaintiff can succeed only by
stating such facts as entitle him to relief according to law; and by prov-
ing those facts.
In these two operations he must be directed by two
different codes. The Civil Code informs him what circumstances give
him the right to recover; and it is the province of the Code of Evidence
to direct in what manner the proof shall be made; not of the facts in that
suit only, but of all facts in any action. To direct what facts are
necessary to be proved, in order to be restored to a possession which is
wrongfully withheld, to enforce the payment of a debt, or obtain
damages for a wrong-could only be done by repeating the substance
of the Civil Code, and would, therefore, be misplaced in the law of evi-
dence, which ought to contain only general rules, applicable to the differ-
ent species of evidence, not to particular actions in which that evidence
may become proper or necessary. It is the same as regards the defence:
the Civil Code directs what circumstances will justify an act that would
otherwise be wrongful: and the Code of Evidence tells us, by the appli-
cation of its general rules, how those circumstances are to be proved.
So in criminal prosecutions; the acts or omissions which constitute an
offence, are designated in the Code of Crimes and Punishment, and
consequently we need no other guide to discover what is necessary to
be proved in any particular prosecution. Why, then, should it be re-
peated in the Code of Evidence?
A contradictory practice on this point, together with the necessity of
arranging and weighing the authority of the contradictory or explana-
tory decisions, in every controverted case, has rendered the English
law of evidence so extremely voluminous and contributed to increase
its uncertainty.
INTRODUCTORY REPORT
TO
THE CODE OF REFORM AND PRISON DISCIPLINE.
IN offering to the legislature a system of penal law, the principal sanc-
tion of which is imprisonment, it is scarcely necessary to remark, that its
whole efficacy must depend on the manner in which confinement is to
be inflicted as a punishment, or used as a means of detention; in other
words, on the wisdom of the Code of Prison Discipline. In preparing
the plan now submitted, I kept in view, as the great objects to be at-
tained-restraint, example and reformation. To discover what species.
of seclusion would best produce these ends, rigidly to direct every pri-
vation necessary to attain them, but to inflict no evil greater than was
required to produce these consequences, would seem at first view a
comparatively easy task; but the selection of proper means, and the de-
tails required for their application, presented difficulties in the execution
only to be overcome by the closest attention to facts, and the most
cautious calculation of consequences. A statement of these facts, and
an exposition of the consequences drawn from them, will enable the
House better to understand and decide on the plan which I have the
honour to propose.
At a time when the penal law of Great Britain, still liable to the re-
proach of unnecessary severity in its enactments, and barbarity in its
executions, had received none of those improvements which the true.
principles of jurisprudence have since produced, the benevolent heart.
and enlightened mind of the legislator of Pennsylvania, suggested the
substitution of solitary imprisonment and labour for the punishment of
death. The beneficial effects of this change were felt until they were
counteracted by the intolerant and sanguinary system of the common
law of England, enforced by the paramount authority of the mother
country. But no sooner did independence confer the power of consult-
ing the public good, than the people of Pennsylvania made the refor-
mation of the penal code a constitutional obligation on their representa-
tives; and, amidst the confusion produced by foreign invasion and civil
discord in the Revolutionary war, a society worthy of the city of
"brotherly love" was formed for the relief of distressed prisoners.
With persevering benevolence, they not only relieved the victims of
the inhuman system that then prevailed, but, by unceasing appeals to
true principles, induced the legislature of that state to begin the great
reform. In all but two or three cases, the punishment of death was
20
306
INTRODUCTORY REPORT TO
abolished: labour was substituted for loss of life and stripes; but, con-
trary to the opinion early expressed by the society in favour of solitary
labour, that on the public works was adopted. The error was a radical
one: debasement, corruption, and an immediate repetition of crime,
were the consequences; and the failure of this experiment with any but a
wise and reflecting people, might have been fatal to the system. But,
happily for Pennsylvania, and perhaps for the world, she had enlighten-
ed men to frame her penal laws; and happier still, she had a class of
citizens admirably calculated to execute them with the zeal of enthu-
siasm. The founder of that state, and his first associates, belonged to a
sect which fitted them, by its principles, and by the habits and pursuits
which it created and prescribed, to be the agents of a reform in jurispru-
dence similar to that which they adopted, and perhaps, carried to ex-
cess, in religion. Their descendants, with less of that enthusiasm which,
in their ancestors, was exalted by persecution, had all the active bene-
volence and Christian charity necessary to prompt, and the perseverance
and unwearied industry to support their exertions. Abstracted by their
tenets from the pleasures which occupy so large a portion of life among
other sects; equally excluded from other pursuits in which so many
find occupation; freed from the vexations of mutual litigation, by sub-
mitting every difference to the umpirage of the elders, and from the
tyranny of fashion by an independent contempt for its rules; the modern
quakers devote all that time which others waste in dissipation, or em-
ploy in intriguing for public employment, to the direction of charitable
institutions, and that surplus wealth which others dissipate in frivolous pur-
suits, to the cause of humanity. In every society for promoting educa-
tion, for instructing or supporting the poor, for relieving the distresses
of prisoners, for suppressing vice and immorality, they are active and
zealous members; and they indemnify themselves for the loss of the
honours and pleasures of the world by the highest of all honours, the
purest of all pleasures-that of doing good.
To these men, and others who participated in their principles, was
committed the task of uniting reformation and punishment, when
secluded was substituted for the public labour to which the convicts had
before been exposed. The most encouraging results justified the change
in the law, and the selection of persons to whom its execution was
committed; and from the year 1790, when it took place, until 1793,
we have the official attestation of one of the inspectors(a), that, out of
two hundred convicts who had been pardoned, only four were returned
on a second conviction; that only two cases of burglary, and not one of
privately stealing from the person, had occurred; that the streets and
roads were freed from robbers, and that in all the prisons for the
populous city and county of Philadelphia, immediately before the
sitting of the court, only four persons were in custody for trial.
This last is a striking fact. The city and county of Philadelphia, at that
time, contained upwards of sixty thousand inhabitants, and, prior to that
time, more than thirty had been condemned at a session, a number
which supposes at least fifty commitments; so that, in the short space
of two years, the effect of the system was the entire suppression of some
(a) A member of the Society of Friends, who has rendered the name of Lowndes as
celebrated for active, enlightened benevolence, as a late lamented statesınan has since done
for eloquence, patriotism and integrity.
THE CODE OF REFORM AND PRISON DISCIPLINE.
307
crimes, and the reduction of others in the proportion of ten to one, in
the place where the example might be supposed to have had the greatest
effect. The operation of the system in the whole of the state, was
nearly as encouraging. Although its population was increasing in a
very rapid ratio, yet conviction decreased from one hundred and twenty-
five, in the year 1789, to the respective numbers of one hundred and
nine, seventy, sixty-three, forty-five(a), in the four succeeding years.
Thus we find that, although the population of the state was increasing
in a ratio of four and a half per cent a year, offences(b) had decreased
in the proportion of forty-five to one hundred and twenty-five, or nearly
two-thirds less; and in the last year I have mentioned, there were no
convictions for one half of the crimes that had figured on the preceding
calendars. So remarkable a diminution of crime in a regular decreasing
series, is a fact worthy our most profound attention, when we are con-
sidering the effects of this species of punishment. Nothing can develop
the true principles of legislation on this subject more clearly than the
history of the reform in Pennsylvania in all its stages. In 1786, we
find that the various system of labour in the public works was estab-
lished. Under it, in the three years of its operation, and the first year
after its repeal, but before the effects of the system could cease, the
average number of convictions in each year was one hundred and nine;
in 1791 it decreased under the new system to seventy-six; in 1792 to
sixty-three; and in 1793 to forty-five: all this while the population of
the state and, what is more worthy to be noted, of the city, was rapidly
increasing. This was the lowest point of depression: from that time
the increase has been in a more rapid ratio than the diminution: for the
first four years afterwards, the average was one hundred and nineteen,
and it has gradually progressed until the average of the last twelve years
is three hundred and eleven; that is, within a fraction of eight times as
many as it was in 1793; but the population of the state in that time had
very little more than doubled(c), so that crime has increased in propor-
tion to the population nearly as eight is to two. Most fortunately for
the cause of truth, humanity and wise legislation, the cause of this ebb
and flow of crime is not difficult to discover; and when pointed out, it
will be more persuasive to show that there is a check that may be effec-
tually applied to the increase of offences than the most ingenious argu-
ment that could be suggested.
In the three years previous to the year 1790, when Philadelphia
prison was first used for the purpose of inflicting punishment by solitary
confinement, three hundred and twenty-eight convicts had been con-
fined. Of these, about two-thirds were committed for short terms, and
others were discharged by pardon; so that at the commencement of the
year 1790, not more than about two hundred remained. The accommo-
dations of the prison afforded the means of separation for this small
number, and the humane zeal of the inspectors, quickened by the natural
desire to give efficacy to the plan which they had themselves formed,
urged on the labour and superintended the instruction of the convicts.
In that year, the first of the experiment, but before its result could be
known, one hundred and nine convictions took place. In the next, its
(a) Vaux's Notices.
(b) Seybert's Statistics.
(c) Four hundred and ninety-five thousand one hundred and eighty-five, in 1793. One
million forty-nine thousand four hundred and fifty-eight, in 1820.
308
INTRODUCTORY REPORT TO
beneficent effects began to be felt; the convictions were reduced to
seventy-eight, and in the two successive years to sixty-three and forty-five.
But in the mean time(a) the prison began to be crowded, solitary labour
was necessarily abandoned, even classification became impossible; the
same prison serving for vagrants, fugitive apprentices(b), and those com-
mitted for trial; a relaxation of discipline was the natural consequence of
the indiscriminate association, and the increase of convictions, in every
succeeding term of four years, bears an exact proportion to the increased
numbers in the prison. This double result of a rapid and before un-
heard of decrease while the convicts were separated and employ-
ed, and an increase almost in the same ratio when they were
suffered to associate, seems to solve the great problem of penal jurispru-
dence, and points to seclusion and labour as an effectual remedy for the
prevention of crime: for these effects were produced without any
change in the state of society at the two periods, that could be favour-
able to such results; on the contrary, an increase of population while
crimes were decreasing, and the same increase, but only of one half, in
the numbers of the people during the other period, when crimes in-
creased fourfold. This practical result, so decisive of the truth of the
theory, founded on a consideration of human nature, with other corro-
borating facts, has confirmed me in the design, not only of persevering in
my first recommendation of imprisonment, solitude and labour, in differ-
ent degrees, and under different modifications, as the principal sanctions
of the code, but it has become the basis of my whole system of prison
discipline; and from the well attested fact that a plan, by no means per-
fect, persevered in for only four years, banished some crimes, and rapid-
ly reduced the number of others nearly two-thirds, I draw the cheering
conclusion that, by giving to the system the improvements of which it
is susceptible, the sum of human happiness may be increased by the
repression of crimes and of the evils which result both from their com-
mission and punishment.
My position is, that imprisonment, with seclusion and labour, as a
punishment, will diminish the offences for which it is inflicted; but that
imprisonment without seclusion will increase them. What will be the
effect of solitary confinement without labour, remains to be tried. The
Pennsylvania experiment proves conclusively, that while the numbers
were not too great to admit of seclusion, offences diminished; and when
it was no longer practicable, they increased. In all the other states a
similar result has been observed, during the first years. When there
was room for classification, the most sanguine hopes of humanity were
surpassed by the effect(c). But with the promiscuous intercourse of the
convicts, offences increased both in number and atrocity. This great-
truth, then, is supported in both its parts by experiment, the most con-
clusive of all proof, when it has been so oftened repeated, under differ-
ent circumstances, as to show the uniform result is produced by the same
cause, and when it confirms a theory to which no abstract objection can
be conclusively urged. But here the theory is emphatically one of
(a) No provision had been made for the increased number of prisoners, which, of all de-
scriptions, amounted, in 1793, to the average number of 450.
(b) Petition of the Society for Public Prisons, 1801-1803.
(c) See reports to the Senate of New-York, and the reports of all the state prisons in the
different states.
THE CODE OF REFORM AND PRISON DISCIPLINE.
309
that kind. Of all the crimes in the catalogue of human depravity, four-
fifths are, in different forms, invasions of private property: and the
motive for committing them is the desire of obtaining, without labour,
the enjoyments which property brings. The natural corrective is to
deprive the offender of the gratifications he expects, and to convince
him that they can be acquired by the exertions of industry. The re-
maining proportion of offences are such as arise from the indulgence of
the bad passions, and for those also solitude and employment are the
best correctives. But whatever corrects the desire or the passion that
prompts the offence, acts in the double capacity, first of punishment,
until the desire is repressed, and, afterwards, when it is effected, of re-
formation. As an example, too, it is infinitely more efficacious than
any other penalty. When it is seen that offences which were com-
mitted to avoid labour and to increase the enjoyments of society, lead
only to solitude and labour, and that the passions which caused the
more serious crimes, are to be kept under the rigid restraint of absti-
nence and reflection, in the fearful loneliness of a cell; when these ex-
amples are permanent, and by a rigid administration of justice believed
to be inevitable, who that studies human nature can doubt the effect?
Therefore, the experiments of Pennsylvania and of the other states, in
the first years of their operation, as well as their subsequent failure,
have but confirmed a theory true, because it was drawn from the work-
ings of the human mind. They succeeded at first exactly in the pro-
portion to the strictness of the seclusion; they failed precisely in the
ratio of its relaxation.
Solitude and labour, then, are the two great remedies. How are they
to be employed? Is the confinement to be a rigid, unbroken solitude,
or only a seclusion from the corruption of evil counsel and example?
Is it to be permanent for the whole term of the sentence, or to be miti-
gated by proofs of industry and amendment? Is the labour to be forced.
or voluntary, and is its principal object pecuniary profit to the state,
or the means of honest support to the convict? These are the great
questions to be decided before we enter on the consideration of a multi-
tude of subordinate details.
When imprisonment and labour were substituted for corporal punish-
ment, the evils of promiscuous association became apparent. The
separation most obviously required was that of the sexes, and this
seems to have been universally introduced. But it required little ob-
servation or knowledge of human nature to discover that something
more was necessary; that, as a place of punishment, a penitentiary
would soon lose its terrors, if the depraved inhabitants were suffered
to enjoy the society within, which they had always preferred when at
large; and that, instead of a place of reformation, it must become the
best institution that could be devised for instruction in all the mys-
teries of vice and crime, if the professors of guilt are suffered to make
disciples of those who may be comparatively ignorant. To remedy
this evil, what is called classification was resorted to; first, the young
were separated from the old, then the analogous division was made
between the novice and the practised offender; further subdivisions.
were found indispensable, in proportion as it was discovered that in
each of these classes would be found individuals of different degrees of
depravity, and, of course, corrupters, and those ready to receive their
lessons. Accordingly, classes were multiplied, until, in some prisons
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INTRODUCTORY REPORT TO
in England we find them amounting to fifteen or more. But, all this
while, the evident truths seemed not to have had proper force: first,
that moral guilt cannot always be discovered, and if discovered, so nicely
appreciated as to assign to each one infected with it, his comparative
place in the scale; and that if it could be so discovered it would be
found that no two would be found contaminated in the same degree.
Secondly, that if these difficulties could be surmounted, and a class
could be formed of individuals who had advanced exactly to the same
point, not only of offence, but of moral depravity, still their association
would produce a further progress in both, just as sparks produce a flame
when brought together, which separated, would be extinguished and
die. It is not in human nature for the mind to be stationary; it must
progress in virtue or in vice: nothing promotes this progress so much
as the emulation created by society; and from the nature of the society
will it receive its direction. Every association of convicts, then, that
can be formed, will in a greater or less degree pervert, but will never
reform, those of which it is composed and we are brought to the
irresistible conclusion that classification once admitted to be useful, it
is so in an inverse proportion to the numbers of which each class is
composed; and is not perfect until we come to the point at which it
loses its name and nature, in the complete separation of individuals.
We come, then, to the conclusion that each convict is to be separated
from his fellows. But is he to be debarred from all other society? In
discussing this question we must always have before our eyes the ends
we propose to attain by the discipline we inflict-punishment and
reformation. So much punishment as is necessary to deter others from
committing the crime, and the offender from repeating it; every alle-
viation not inconsistent with those objects, that will cause the culprit
gradually to prefer a life of honest industry, not from the fear of punish-
ment, but from a conviction of its utility. That system of prison dis-
cipline will make the nearest approach to perfection that shall best
attain these objects. In order to judge in what degree the plan I pro-
pose is entitled to this distinction, it will be necessary to examine other
systems, and a discussion of their defects will enable us to discover
how far that which is proposed as a substitute avoids them.
Imprisonment and labour have been adopted, as a punishment, in four-
teen out of twenty-four states. In none of these has there been, until
very lately, any individual seclusion, except for breaches of prison
discipline, and, during different periods, for the more atrocious offences:
the consequences of this radical fault were such as might have been
expected an increase rather than a diminution of crime; and the pro-
digal, indiscreet and ruinous exercise of the pardoning power, com-
bined to render abortive the best experiment ever made for the sup-
pression of vice. The people who were taxed for the support of these
institutions, saw in them only the nurseries of crime, and were natu-
rally desirous of throwing off the burthen; and it was made, in one
important state, a serious question whether they should not resort to
sanguinary and infamous punishments. The calm reasoning and spirit.
of investigation, which sooner or later resume their place in the coun-
cils of our republics, soon discovered that the experiment had not been
fairly tried; the cause of its failure became apparent; and all agreed
that imprisonment without separation would never serve either for
punishment or reform. Two different systems were proposed to re-
THE CODE OF REFORM AND PRISON DISCIPLINE.
311
medy the evil; one is in the course of experiment; the other has not
yet been examined, but preparations are nearly completed for carrying
it into effect on a most extensive scale, and in a degree that must com-
pletely test its utility. In New-York there are two penitentiaries, and
a third is now constructing: one of them, in the city, is, from its con-
struction, and the numbers confined in it, necessarily conducted on the
old vicious plan, which is to be abandoned as soon as the third prison
is finished; the other, at Auburn, a village in the interior of the state, is
the model for the new penitentiary, and by the partisans of the system
on which it is managed, is declared to be one that ought to serve as a
pattern for all others. That system is briefly this: absolute solitude
during the night; joint labor during the day, but without any commu-
nication with each other by word or sign; meals taken at the same
table, but so disposed as not to see the faces of those opposite to them;
religious instruction on Sundays, received in a body; and a Sunday
school in the same manner, twice a day; both in church and school
the same prohibition of intercourse; a full diet of meat, bread and
vegetables; comfortable bedding, in very narrow but well-aired, well
warmed cells, and the utmost attention to cleanliness in every depart-
ment of the prison; visiters are admitted, but without permission to
speak to the convicts-who on their discharge receive a sum not exceed-
ing three dollars, without any relation to their earnings; their work
is uninterrupted during the day, except by their meals, and is gener-
ally contracted for by mechanics, who find the materials. This enu-
meration is not one of what is required but what is actually done.
And the strictness with which these rules have been enforced is such,
that it is asserted that, among thirty or forty, working together for
years in the same shop, no two of them know each others names.
Mr Elam Lynds, a gentleman who formerly served in the army, has
the credit of introducing this order it was begun with his appoint-
ment as keeper of the Auburn prison, and he has executed it with
most astonishing success in superintending the building of the new pri-
son at Sing Sing, where he has had two hundred convicts employed,
with no other place of confinement than a wooden shed, in which they
slept, and with only eight or ten under keepers and guards, and yet the
same industry, order and obedience, was preserved as there was within
the walls of the prison. Nothing can be more imposing than the view
of a prison conducted on these principles. Order, obedience, sobriety,
industry, religious and literary instruction, and solitary reflection, all
seem to promise beneficial effects on the convict, while important points
of secure detention and economy are attained for the state. Yet with
all these advantages I cannot offer this system for adoption; and my
chief objection arises from the means employed to procure them. It
is by the lash(u), put into the hands of the keeper, to be used at dis-
(a) "It has already appeared that, as a mode of punishment, and as the means of enforc-
ing prison discipline, in this prison, STRIPES are generally resorted to as a punishment, in
the presence of the inspectors; and to enforce obedience, by the keepers, at all times when
necessary. These stripes are required by the present agent to be inflicted by the keeper
with a raw hide whip, and applied to the back, &c.”—Power's Account of the State Pri-
son at Auburn, p. 60.
"At Auburn stripes are almost the only mode of punishment."-Report of Massachu-
setts Society.
312
INTRODUCTORY REPORT TO
cretion, and by a power strangely I think declared to be legally vested
in the turnkey(a). The objections to this system are obvious. And first,
the anomaly presents itself, not to call it by a harsher name, of per-
mitting a punishment to be inflicted at the discretion not only of a
man at the head of the institution, but by his under officers, at their
discretion, and that too for disrespect, or the vague charge of disobe-
dience, which punishment the law has abolished as too ignominious,
unequal and cruel, to be inflicted by the court for dangerous crimes.
The discretion is limited, say the court in their opinon, under which
it is to be considered to be legal, to the enforcement of obedience for
its object, and in degree to the punishment necessary to secure it.
Can any thing be more vague? Obedience to what? Lawful com-
mands is the answer; but it is unlawful to break any, the minutest
regulation of the prison; it is unlawful to deny any breach of them
when the convict is accused by the turnkey; therefore, if a convict
speak to his neighbour he is whipped, and if he should deny having
done so he is whipped. The very case in which the stripes were
declared lawful, was one in which they were severely inflicted to
make the convict confess, and when he had confessed, they ceased.-
Here is every character of the torture, applied by the lowest officer
in the prison-and this by the court of the state of New-York was
declared to be lawful, if the jury should think that the chastisement
was not greater in degree than was necessary to enforce obedience.
Now the obedience required in this case was the confession; and it
follows according to the decision of the court, that such force as was
necessary to this end was justifiable; in other words, that torture by
infliction of stripes might legally be used in the state of New-York, by
a turnkey against a convict, according to the common law, although
the legislature has enacted, "That if any prisoner in either of the state's
prisons shall refuse to comply with the rules, it shall be lawful, and is
declared to be the duty of the keepers, under the direction of the
inspectors, to inflict corporal punishment by whipping, not to exceed
thirty-nine lashes, or to confine them. Provided, that, when corporal
punishment is inflicted on any person by whipping, it shall be the
duty of at least two of the inspectors to be present." Then accord-
ing to the discipline of the prison, as declared by the court to be
lawful, only thirty-nine stripes can be inflicted at a time for any of-
fence, and that by order of the inspectors, and in the presence of two
of them; but a turnkey, whenever it is necessary to enforce obedience,
or a confession, may inflict as many as he pleases, without any witness
of his proceedings. I have enlarged upon this head, more, perhaps,
than was necessary, to enforce the position that the punishment by
stripes was an anomaly even as it is permitted by law; and I have de-
tailed the practice independent of the statute, for the direct purpose of
showing the principle on which the discipline of this prison rests; and
for the incidental one of illustrating, by a striking example, the diffi-
culty of enforcing a statute in countries governed by unwritten law.
Here, because the common law permits a school-master moderately to
correct his pupil, and an officer his soldiers, the learned judge declares
it to be law, that the turnkey of a penitentiary, an institution utterly
(a) Decision of the court in the case of The People v. An Under Keeper at Auburn.-
Power's Account, p. 62.
THE CODE OF REFORM AND PRISON DISCIPLINE.
313
unknown to the common law, has a right to chastise a convict, nay,
more, whip him until he confess himself guilty of an offence; and this,
too, although the legislature has expressly directed that when he is whip-
ped it shall be by the direction of other officers, and in their presence.
Yet this decision is law in the state of New York, and is published as
the authority by which the discipline of this prison is maintained.
The next objection to this system is its evident liability to abuse.
The talent and firmness, tempered by moderation, the knowledge of
human nature, and personal courage of captain Lynds, who introduced
it, and who began by procuring a waiver of all interference with his
plans by the inspectors, have done much present good; he has intro-
duced order, economy, industry and cleanliness; he has banished.
many abuses; and his system, under his own direction, although liable
to strong objections, is yet so much superior in effect to any hitherto
practised, that it has been considered as a model(a) for the imitation of
the world; and in his hands, I have no doubt, that many beneficial
effects will result from it. But what security have we that the same
rare qualities will be found united in another? In the communications
I have had with him, he says, that his method may be easily taught.
This may be true, but unless he can impart his integrity and modera-
tion(b) as well as a knowledge of his discipline, it will be unsafe to
adopt a system, that must depend entirely for its success on the personal
qualitics of the man who is to carry it into effect.
But, even if we were sure of commanding all the requisite qualities
and talents united in the same person, still there are faults, inherent in
the plan, which no administration can cure. Fear is the great princi-
ple of this institution, and chastisement of the most degrading kind is
the instrument to excite it. If the sole objects were to prescrve order
in the prison, it is perhaps as effectual, but certainly not as proper a
mode as can be devised. But, as a punishment, it fails in two essen-
tial points; in most cases it will not deter the party from a repetition
of his crimes, and very rarely will it take away by reformation his
inclination to relapse. A superficial view of this subject has led to
the belief, that the great secret of penal legislation is, to annex a pen-
alty of sufficient severity to every offence; and, accordingly, all the
variety of pains that the body of man could suffer, infamy and death,
have figured as sanctions in the codes of all nations; but although these
have been in a train of experiment for thousands of years, under every
variety that government, manners and religion could give, they have
never produced the expected effect. The reason is to be found in that
insurgent spirit with which man was endowed by his beneficent Cre-
ator, to answer the best ends of his nature. The same feeling that
elevated, refined, and applied to the noblest purpose, animates the
patriot to resist civil tyranny, and the martyr to defy the flames,
when it is perverted, and made the incentive to vice and crime, goads
on the convict to arraign the justice of his sentence, to rebel against
those who execute it, and to counteract its effects with an obstinacy in
exact proportion to the severity of the punishment. If the grossest
(a) Report of the Massachusetts Society.
(b) The case of the keeper, above alluded to, took place, I believe, after Mr Lynds had
left the Auburn prison, and is itself a strong illustration of the danger of unlimited delega-
tion of power.
2 P
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INTRODUCTORY REPORT TO
follies and absurdest fancies of enthusiasm, as well as the clear truths
and pure principles of religion, are extended and confirmed by
severe punishments and persecution, what more evident proof can we
require, that this character of the human mind braces itself with an
equal energy against bodily suffering, whether inflicted for the correc-
tion of error or the suppression of truth? The convict, therefore, who
has performed his daily labour, even for years, under the pang or the
dread of the lash, will be rather less deterred from the repetition of
his crimes, whenever he thinks himself secure from detection, than he
would have been by a milder discipline, because the spirit of hatred,
revenge, and a desire to retaliate on society, are stimulated and strength-
ened by the principles which I have supposed to be inherent in our
nature. But, as the object of punishment is not only to prevent the
repetition, but also the commission of offences, we must inquire whe-
ther this discipline is calculated, in any degree, to have this effect? Its
peculiar characteristic is severity. We are told, indeed, that its actual
application to individuals is not frequently required, because of the
certainty with which punishment follows the offence; but the dread
of it is always there, and the uplifted lash, although its stroke is avoided
by submission, is, perhaps, as great a punishment as the actual pain,
because it is attended with the moral suffering of degradation. We
must repeat then that the nature of this discipline does no more than
add severity to the punishment; and he must be blind to the uniform
history of penal jurisprudence, who can believe that increased severity
diminishes the recurrence of crimes. The same operation of the mind,
to which I have alluded, that gives the energy of mental resistance to
the sufferer, operates by a sympathy invariably called into action, on
all who, by their state in society, their education or manners, have
any feelings in common with him; and by the same system of severity
converts are made to religion, proselytes to impostures, and accessaries
to offences. The system, therefore, to judge from analogy, will not
deter. Will it reform? Judging by the same rule, for, as yet, we can-
not have, in any conclusive degree, the light of experience, I think it
cannot. The force of habits on the mind is proverbial; but those
which have this power, are such as were either formed in early life, or
were produced by repeated voluntary acts; few instances, it is thought,
can be found in which any series of constrained acts, have produced
the habit of continuing them after the force was removed; but this
part of the subject will be more fully discussed, when I shall explain
the reformatory system contained in the code which I submit for con-
sideration. I will only now remark that, so far as the force is applied
to coerce the convict into a knowledge of some trade, by which he may
earn a subsistence, so far it may produce amendment; but then if the
same labour can be made a voluntary act, the skill attained in it will
probably be more perfect, and undoubtedly there is a greater chance of
its being persevered in.
I conclude then that this system, although it avoids the obvious de-
fect of promiscuous confinement at night, and by the strictness of its
discipline, prevents many of the evils attending associated labours by
day, still has defects, that will not permit me to agree with the com-
mittee of the Massachusetts Society, in considering it as a model for
imitation. Before I develope the features of one, in which I think these
defects are remedied, while all its advantages are retained, it will be
THE CODE OF REFORM AND PRISON DISCIPLINE.
315
necessary to examine the rival plan proposed in Pennsylvania. This
consists in solitary confinement, strictly so called, by which, say the
committee who proposed it, we mean "such an entire seclusion of con-
victs from society, and from one another, as that during the period of
their confinement, no one shall see or hear, or be seen or heard, by
any human being, except the jailor, the inspectors, or such other per-
sons as, for highly urgent reasons, may be permitted to enter the walls.
of the prison"(a). To carry this plan into execution a prison has been
erected at Pittsburgh, and another is nearly completed, on a most ex-
tensive scale, at Philadelphia. This last is most admirably contrived
for perfect seclusion: the purposes of cleanliness do not demand the
entrance of an attendant, or the egress of the prisoner. His food is
furnished without his seeing the hand that brings it; and a complete
inspection of every part of the cell is had, while the prisoner can nei-
ther see nor hear the approach of his keeper; all is silence and soli-
tude, and, if these alone can work reformation, there was never a build-
ing better calculated to produce the effect. Whether labour is to be
permitted or enjoined does not seem to be determined. There is a
court, however, annexed to each cell, in which solitary labour may be
performed, without much danger of communication between the pri-
soners. This system is simple, and has few details beyond those I
have mentioned in describing it. The advantages expected from it are
described in the report to which I have referred. Reformation it is
hoped will be produced by the reflections inseparable from solitude,
and the severity of the punishment is well described in the report, as
one that will almost make the patient "the victim of despair," while
he is "shut up in a cell for weeks and months and years alone, to be
deprived of all converse-while he counts the tedious hours as they
pass, a prey to the corrodings of conscience and the pangs of guilt:"
and this, it is supposed, will effectually deter the convict from repeat-
ing his crime, and make the vicious fly from a region "where convic-
tion produces so much misery." As the severity of the punishment
is increased, its duration is proposed to be diminished; which will pro-
duce a saving that the committee believe will compensate for the loss
incurred by the difference between solitary and social labour, if the
former should be allowed. It is evident that here the contagion of evil
associations is effectually prevented without the degrading discipline
of the New York plan; that the security is more perfect, and at less
expense; and, if they should make such relaxation from the strictness
of solitude as to permit instruction and labour, that it is liable to much
fewer objections than the other. If, on the contrary, the plan of the
committee, in their understanding of what is meant by solitude, be
carried strictly into execution, without instruction, without labour,
those objections would be of the most serious nature. Their force
will be better understood when I show in what points the plan I pro-
pose differs from those I have thus reviewed.
I premise that no plan of jurisprudence, combining the prevention
of crime with the reformation of the criminal, has ever yet been at-
tempted on such a scale as would embrace all the different stages and
departments of criminal procedure. The only experiment that has
been made, that which is called the penitentiary system, has been ap-
(a) Report, 1821.
316
INTRODUCTORY REPORT TO
plied solely to the substitution of imprisonment for other more acute
bodily suffering as a punishment after conviction, in the expectation
that it would not only deter but reform; and the results, during the
first years of the trial, gave encouraging proof that, if conducted on pro-
per principles, it must have the most beneficial effect. But the wretched
economy that refused the accommodations for separate confinement;
the exercise of the pardoning power, ill-advised in many instances, in
others resulting from a necessity created by that economy; and the
neglect of moral instruction, co-operated to arrest the course of this
first great improvement; and all the different state committees unite
with that of Pennsylvania, in the declaration, that the great peniten-
tiary system is no longer in operation. But this, even if it had been
fully tried, is but one part, though an important one, of a reformatory
code that deserves the name. To be perfect in its object, such a sys-
tem should begin by prescribing a plan of public education, not con-
fined to the elements of literature, but extended particularly to the
duties of a citizen towards the state, and of men towards each other in
every relation in life, and to those principles of religion which are
equally acknowledged by all sects. It would only be repeating trite
maxims and acknowledged truths, were the necessity of an early edu-
cation to be enlarged upon; but it is its operation, when extended to
all classes of society, in preventing offences, that is here considered;
early youth is the season in which the germs of cupidity are to be
eradicated:
Eradenda cupidinis
Pravi sunt elementa: et teneræ nimis
Mentes superioribus
Formandæ studiis-
It is there our legislation on this subject must begin, if we wish that
its foundation should be stable. A prejudice has been entertained
against religious instruction in public institutions, from a fear of their
being made the engines of proselytism to sectarian doctrines--a fear
well founded in countries where there is a dominant sect, but utterly
groundless here, where the only establishment is that of perfect equa-
lity, and where there would be no practical difficulty in leaving to the
parents and pastors of every pupil, the care of instructing him in the
particular dogmas of his church, at the same time that the principles
in which all concurred might be inculcated in the public school not
only as duties of morality but of religion. It is astonishing how little
use has been made of this powerful, I might say, when properly used,
this omnipotent engine, in promoting the temporal concerns of society,
as well as the most important welfare of the individuals who compose
it. When it has been called into action, it has been either in aid of
temporal, often absolute power, or for the aggrandizement of a parti-
cular church. In our happy country no such result need be feared;
and if this important part of a system for diminishing offence was within
the compass of my undertaking, I should offer the project of a statute
on this subject, that I think would secure the most perfect equality of
religious rights, while it added the inestimable advantages of religious
sanction in the prevention of crime. These advantages cannot be
placed in a stronger point of light than is done by a gentleman to whose
publications on this subject I have been indebted for much information
THE CODE OF REFORM AND PRISON DISCIPLINE.
317
in fact, as well as instruction in argument. "If" he says "the inflic-
tion of human punishment were as certain as their promulgation,
crimes would be prevented altogether. But as it is impossible for any
government to institute such a system of laws as can detect and punish
all offences, the daring criminal perceives the imperfection; and, trust-
ing to his own precautions, and availing himself of time and circum-
stances, flatters himself with the prospect of impunity. Not so with
the denunciations of divine punishment; which, when daily impressed
on the mind, possess a sanction at which mere human authority can
never arrive, and bring with them the certainty of detection and
certainty of punishment, which alone can, in all cases and under all
circumstances, prevent the perpetration of crime. If, then, we are
once able to produce upon the mind a thorough conviction of the ex-
istence of one supreme, intelligent, superintending being, the creator
of all things, who sees through all his works, and perceives the deepest
recesses of the human heart, and who will reward or punish every one
according to his deeds, this will not only remedy the defects in mere
human institutions by providing that continual inspection, discovery,
and punishment, which such institutions endeavour in vain to supply;
but will correct innumerable offences of every kind which they do not
pretend to punish, and which are wholly beyond their reach(a).”
Such a plan of general religious instruction, embracing the doctrines
common to all the Christain sects, and excluding all sectarian doctrine,
is not mere theory. It has been for years practised in the city of Bos-
ton, where nearly 100,000 dollars are appropriated to the public instruc-
tion of children of every denomination, and where the forms of reli-
gious instruction have been settled by the pastors of the several sects
on the principles I have laid down; and such success has attended this
honourable and liberal experiment, that, although the schools have been
in operation for more than ten years, and on an average more than
three thousand have been educated in them annually, not one of
those educated there have been even committed for a crime(b).
And in New York a similar effect has been observed. Of the thou-
sands educated in the public schools of that city, taken generally from
the poorest classes of society, but one, it is asserted, has ever been con-
victed, and that for a trifling offence(c).
I should apologize for drawing the attention of the legislature to a
subject that might seem foreign to the plan which this report is intend-
ed to elucidate, if public education were not found to be one of the best
means of preventing crimes, and if the reflections here made did not apply
to the instruction which forms so large a part of the prison discipline
(a) Roscoe. Additional Observations on Penal Jurisprudence.
(b) As far as the reporter is informed, the United States have given the first example, in
modern times, of provision for education, furnished at the public expense to all the commu-
nity. The early colonists of New-England set the example; the system is coeval with the
first settlement of Massachusetts, and has with the most enlightened spirit of legis-
lation been adopted by other states. The liberal arrangement with respect to religious in-
struction is not confined to the period of ten years mentioned in the text-it was made much
earlier; but the fact of its operation in preventing crime was derived from a gentleman,
(S. L. Knapp, Esq.) who spoke from knowledge, acquired during that period, by a personal
attention to the schools, and a close professional attendance in the courts.
(c) Letter from Thomas Eddy to the commissioners, 1825, containing very judicious re-
flections on this subject.
318
INTRODUCTORY REPORT TO
which I propose. Adverting, then, only to this as to a subject connected
with, but not embraced by, the matter of this report, I proceed to develop
the system which, after the maturest reflection, I have submitted for con-
sideration. Its objects are extensive and many, but are so closely con-
nected, that to strike out any one would destroy the unity that must give
it effect. Instead of confining it, as has been hitherto done, to consider-
ing imprisonment and labour as the means of punishing crimes already
committed, I draw the attention of the legislature to the means of prevent-
ing them, by provisions bearing upon pauperism, mendicity, idleness
and vagrancy, the great sources of those offences which send the greatest
numbers to our prisons.
Political society owes perfect protection to all its members in their
persons, reputations and property; and it also owes necessary sub-
sistence to those who cannot procure it for themselves, penal laws to
suppress offences are the consequences of the first obligation, those for
the relief of pauperism of the second; these two are closely connected,
and when poverty is relieved, and idleness punished whenever it
assumes the garb of necessity, and presses on the fund that is destined
for its relief, the property and persons of the more fortunate classes
will be found to have acquired a security, that, in the present state of
things, cannot exist.
This truth has attracted the attention of most civilized nations, but by
always making the laws of pauperism a distinct branch of legislation,
never connecting it with their penal jurisprudence, with which it has
so intimate a relation, it has been a source of more perplexity and con-
fusion, has given birth to more bad theory and ruinous practice than
any other question in government. Many of these difficulties, it is
supposed, will be obviated by the application of sound principles, before
the evil has become so incorporated in the system as to make it difficult
to be eradicated.
In relation to this subject, society is formed of two divisions; those
who by their industry or property, provide subsistence for themselves
and their families, and those who do not. The latter must of necess-
ity draw their support from the former, either by depredations on
property which brings them within the purview of the laws for pun-
ishing crimes; or under the reality or pretence of pauperism by levy-
ing a tax on public or individual charity. It is to this last description
that I now draw the attention of the legislature. They may be divided
into three classes.
Those who can labour and are willing to labour, but who cannot find
employment.
Those who can labour, but are idle from inclination, not for want of
employment.
Those who are unable to support themselves by their labour, from
infancy, old age, or infirmity of body or mind.
The first and last of these classes are to be relieved, not only by force
of the obligation before referred to, but from a social duty not less im-
perative, because it is founded on humane feelings, and is enforced by
perhaps the best precept of that religion which places charity in the
highest rank of the virtues it inculcates. This relief must be given by
providing means of employment for the industrious, and gratuitous
support for the helpless. The middle class includes those who, under
THE CODE OF REFORM AND PRISON DISCIPLINE.
319
the name of vagrants and able bodied beggars, are placed in society on
the verge between vice and crime, vicious enough to require inspection
and restraint, not so palpably guilty as to justify severer punishment :
abounding in large cities, they are the hot-beds, in which idleness
and profligacy are forced into crime, and are properly the object of
coercive justice, but they cannot become so without adopting the means
necessary to distinguish and separate them from the innocently poor,
and it is this necessity which brings that class also within the scope of the
measures for preventing crimes. It was thought that a good system
should not only restrain the vicious, and punish and reform the guilty,
but, by relieving and employing the poor, put an end to one of the
strongest inducements to commit offences. For these reasons the Code
of Reform and Prison Discipline provides, that a building shall be erected
to be called the House of Industry, with two distinct departments, one
for voluntary the other for coerced labour; the first department is in-
tended as a place of employment for all those who are capable of gain-
ing, by their bodily exertions, a complete or partial support; and for
the few who are totally helpless. Its character, as a HOUSE OF REFUGE,
will be hereafter explained; the second department is designated as a
place in which vagrants and the able bodied mendicants shall be forced
to labour for their support.
This establishment enters most essentially into the plan I propose.
Its different departments, under the name of poorhouses, workhouses,
and bridewells, are known not only in England and the states which
derive their jurisprudence from that country, but in different parts of
Europe, but they are there distinct institutions, and want that unity of
plan from which it is thought their principal utility will arise. This re-
quires elucidation. If the duty of supporting its members be once ac-
knowledged to be one incumbent on society to the extent that has been
assumed, and if the classification I have made is correct, the necessity
becomes apparent of distinguishing in what degree the different appli-
cants are entitled to relief; but that system would be obviously imper-
fect that was confined to making this distinction, and granting relief
only to the one class without making any disposition of the others.
Every applicant, if my premises be true, must belong to one or the
other of those classes; and the same magistrate who hears his demand
of support, or before whom he is brought, on an accusation of illegally
obtaining it, is enabled at once to assign him his place. Is he able and
willing to work, but cannot obtain it? Here is employment suited to his
strength, to his age, his capacity. Is he able to work, but idle, intem-
perate, or vicious? His habits must be corrected by seclusion, sobriety,
instruction and labour. Is he utterly unable to provide for his support?
The great social duty of religion and humanity must be performed.
One investigation on this plan puts an end to the inquiry. Every one
applying for alms, or convicted of illegal idleness and vice, necessarily
belongs to one or the other class, and immediately finds his place; he
no longer remains a burthen on individuals, and society is at once re-
lieved from vagrancy and pauperism. Instead of this simple process,
the poor laws are generally administered by agents whose duty is con-
fined to a selection of proper objects of charity, without power to punish
the impostor who preys on the fund provided for the poor and the help-
less; and without any means to enable the honest labourer or artisan
to earn his subsistence. This establishment once made, on a proper
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INTRODUCTORY REPORT TO
scale, the plan for supporting it faithfully executed, the second degree
in this scale of preventive justice will be obtained. By the first, your
rising generation will be taught habits of industrious obedience to the
law, a respect for religion, and a love of justice and moral duties. By
this, which is the second, those who have grown up without these ad-
vantages, those who have not profited by them, and the numerous class
of adventurers from other countries, will be arrested in the earliest stages
of their profligacy, and taught to be industrious before they become
criminal.
I am not unaware that this plan is, in some points, founded on princi-
ples that are much questioned by many who have written on this part
of social economy. Without making this report a vehicle for the full
discussion of those principles, it will be necessary briefly to state the ob-
jections that have been made, with my reasons for not yielding to their
force.
The policy, and sometimes the obligation, of a public provision for the
poor, has been forcibly assailed in England, and by men of high repu-
tation here. The argument is shortly this. The duty to provide for
the poor is rather a moral than a civil obligation: it binds, successively,
relations, friends, wealthy individuals, and, last of all, society, which
can be called on to support those only who are not provided for by in-
dividuals. But if this obligation upon society be once acknowledged
and acted on, the individuals who stand in a nearer relation to the pau-
per will at once disregard a duty which has only a moral sanction, and
the government will have the exclusive charge of the burthen. And
this, according to the argument, is not all: the certainty of an ultimate
support will lead to idleness, extravagant speculations, imprudent mar-
riages, and all the improvident acts that naturally produce poverty; and,
in time, the number of paupers will be so great as to consume the re-
sources of the state, or, if quartered on smaller divisions of the country,
to reduce the individuals composing it nearly to the state of those
whom they are forced to relieve. And the theory is supported by re-
ference to England, where, at times, every fifth man is a pauper,
and the poor-rates equal one-tenth (a) of the whole revenue of the
kingdom.
In a country with a population so great as to reduce the full price of
labour to a bare subsistence, and at the same time employing that labour
in the production of articles for which the demand is uncertain, there is
no doubt, that, at times, a permanent provision for the poor must be ex-
tremely burthensome on the community; and in such a country, an
establishment to provide labour for all those whom the vicissitudes of
trade should throw out of employment, would be, perhaps, impractica-
ble, and certainly very difficult of execution. But besides its inappli-
cability to a different state of society, the argument is founded on the
false principle, that the moral obligation of charity in individuals,
whether related to the pauper or not, is superior in degree, as well as
prior in the time of its exercise, to that social duty which every nation
owes to the individuals which compose it; which duty is not only pro-
tection, but mutual support. That society owes protection to all its
members, is not denied. But what is that protection? Certainly its
(a) In the year 1821, the poor-rates were 7,325,611/; the income 72,811,862; the number
of paupers 2,193,423; and the whole population 12,218,500.
AND
the code of reform and pRISON DISCIPLine.
321
;
chief object is life; but whether life be assailed by the sword or by
famine, it is equally important for the individual, and for the commu-
nity too, that it should be preserved. There are mutual obligations
between society and the members who compose it, which are not writ-
ten covenants; they result from the nature of the connexion, from the
object to be attained by the association, which is the protection of life
and property. But the preservation of life is the first object, property
is only a secondary one; and if a contract is to be supposed, can it be
imagined to be of a nature that would impose on any one of the con-
tracting parties the loss of that which it was the chief end of the con-
tract to preserve; and that too for the preservation to the others of a
portion of that which was only the secondary object? In other words,
can it be supposed that any just contract could stipulate that one of the con-
tracting parties should die of hunger, in order that the others might enjoy,
without deduction, the whole of their property? The obligation, then,
if derived from the only source to which we can look for its conditions,
includes support as well as protection; and although this obligation may,
by the operation of positive law, be justly modified by imposing the
burthen of support on relations capable by their fortune of supporting
it, yet, whenever these means are either deficient, or have not been
provided, the duty returns in its full force upon the community.
That this duty is sometimes very onerous, cannot be denied.
A re-
dundant population, by which I mean more people than can be so em-
ployed as to earn their subsistence, is a cause of this evil, that can only
be avoided by emigration, when it is the result of a natural increase
but generally it is the effect of false principles in political economy;
of that system which, by premiums and duties, pampers one branch of
industry into an unnatural growth, and seduces so many to pursue it,
that the market is soon overstocked with the proceeds of their labour,
and they are then left to starve, or become the objects of public charity.
A temporary foreign demand may also have the same effect; but, in
that case, the community, which must have been enriched by the effects
of that demand, will be better able to bear the burthen, and ought not
to complain that it is forced to give occasional support to the unfortu-
nate instruments of its prosperity. But, in a country where the ordi-
nary price of labour is more than sufficient for maintenance of the poor,
they can only be a serious burthen in consequence of the want of true
principles, or a good system of enforcing them, and the whole secret
lies in the finding employment adapted to every applicant for relief.
The number of those who are incapable in any degree of contributing
by labour to their own support, is very small; and it is evident that,
when none are idle, the cost to the state will be only equal to the differ-
ence between the proceeds of such labour and the expense of support;
but the proceeds of ordinary labour are supposed, by the state of society,
to be more than sufficient for maintenance; therefore, making all pro-
per deductions for forced labour, and the other disadvantages of public
institutions, the proceeds of labour, then, if they are properly conducted,
will not fall so far short of the expense as to create any fear of the
ruinous consequences which attend the increase of the poor-rates in
England.
At present, the duty of supporting needy relations is, by the law as
well of England as of the different united states, confined to ascend-
ants and descendants only. To extend this obligation, so as to oblig
2 Q
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INTRODUCTORY REPORT TO
collaterals within the second, or perhaps the third degree, to contribute
to their support, would, it is thought, not only lessen the burthen on
the public, but prevent, by the advice and interference of friends,
those imprudent engagements which are the principal causes of poverty.
Should it have this effect, it will lessen the weight of the objection
that a public provision for the poor will increase the numbers, by ren-
dering men adventurous in speculation, improvident in marriage, and
careless in the conduct of their affairs. Most of the writers on this
subject, state that this effect is produced by the poor laws of England;
but it would seem that the natural love of independence, and the sense of
degradation inseparable from a reliance on public charity, would always
prevent this provision being calculated on as a desirable resource;
and we might rather conclude that the numbers who are reduced to
this extremity by extravagance, would have been equally prodigal if
no such provision had existed. However this may be, in a country
where the sense of shame is deadened by misery and extensive com-
panionship in its degrading effects, and where support is afforded with-
out exacting its equivalent in labour, it is believed that nothing of this
nature need to be apprehended, in one where the natural repugnance to
live on charity is strengthened by the ease with which labour can pro-
cure not only support, but competence and ease; and where the re-
lief that it is proposed to afford, can only be procured by bodily exer-
tions proportioned to the ability of the party. Such are the reasonings
and facts on which I have ventured to propose, as part of my plan, the
house of refuge and of industry. I deem it a most essential part of
the system. As prevention, in the diseases of the body, is less pain-
ful, less expensive, and more efficacious than the most skilful cure;
so, in the moral maladies of society, to arrest the vicious before the
profligacy assumes the shape of crime; to take away from the poor
the cause or pretence of relieving themselves by fraud or by theft; to
reform them by education, and make their own industry contribute to
their support, although difficult and expensive; will be found more
effectual in the suppression of offences, and more economical, than the
best organized system of punishment. An offence perpetrated, incurs
the loss sustained by its commission, and frequently that of its repe-
tion added to the expense of its punishment. To prevent an offence
requires only the previous expense of education and confinement.
These reasons have induced me to suggest the plan of general educa-
tion, and to combine with the system I offer, establishments for the
relief of paupers, and the seclusion and instruction of the vicious and
idle. These institutions, although they may conveniently be placed
under the immediate direction of the same superintendent, are essen-
tially different in their character: the one is a prison, the other a
place of refuge. The object of one is instruction, of the other relief:
education and industry are ends common to both. Therefore, the
regulations for the one prescribe strict seclusion and coerced labour,
while the confinement and classification of the other is merely such as
is necessary for the maintenance of order; and the only penalty for
idleness is discharge, with the certainty of being classed in the next
application for relief with those who are wilfully idle. The great ob-
jection usually made to establishments of this kind, is the expense.
This, in a great measure, will be obviated by a wise and prudent
administration, by which labour, suited to every degree of strength
THE CODE OF REFORM AND PRISON DISCIPLINE.
323
and skill may be provided. In our country there are great facilities
for this gardening, poultry yards, and the different occupations of
agriculture necessary for the supply of a large city, offer employments
of the most healthful kind, and in which some occupation suited to
every individual may be found. Add to these, a brick or tile yard,
a rope walk, chair making, all the manufactures of straw, cotton spin-
ning, weaving, and other manufactures, of which more particular
mention will be made when we speak of the penitentiary; and it will
be seen that, by proper management, means will be found to employ
all the tenants of this establishment, whether in the seclusion of the
house of industry, or the more relaxed discipline of the house of re-
fuge few are so weak and infirm as to contribute nothing towards
their support; and the great object will be that there shall be no idle-
ness that is not the effect of infirmity. By these means, the actual ex-
pense will be much lessened, and the comparative account truly stated,
between the cost of suffering them to live in idleness by contributions
levied upon private or public charity, or depredations upon property,
and the expense of this establishment will show a balance greatly in
its favour.
We are come to that part of the system of prison discipline applica-
ble to penal law, in that restricted sense which confines it to the prose-
cution and punishment of offences. In the project which I submit to
the legislature, I begin with a part of the subject that has generally
been most unaccountably, most injuriously neglected. The danger of
vicious association is universally acknowledged; its corrupting influ-
ence has been pourtrayed by every figure that rhetoric could supply,
and enforced by the most energetic language of eloquence; but its
deleterious effects seem to be feared only after condemnation, and no
efficient plan has hitherto been adopted, or, as far as I am informed,
proposed to any legislature, to apply a corrective to it in the incipient
stages of criminal procedure. Yet here, emphatically, it is calculated
more widely to spread its infection. After condemnation there can be
no association but of the guilty with the guilty; but in the prelimi-
nary imprisonment, guilt is associated with innocence. The youth who
is confined on suspicion only, whose innocence at the time of his ar-
rest is attested by his subsequent acquittal, leaves the den where he
was imprisoned, with tainted morals, depraved habits, passions excited
to vengeance, and fit associates to aid him in pursuits that makes his
second entrance to the house of detention only a passage to the peni-
tentiary, or, in our present system, to the gallows. In our great cities,
where this reform is most necessary, it seems least attended to. Vices
the most disgusting, brutal intemperance, crime in its most hideous
and appalling forms, are there congregated, and form a mass of cor-
ruption, rendered more deleterious from the mixture of imported de-
pravity and native profligacy of which it is composed. The bridewell
of a large city is the place in which those representatives of human na-
ture, in its most degraded shape, are assembled; brought into close
contact, so that no art of fraud, no means of depredation, no shift to
avoid detection, known to one, may be hid from the other; where
those who have escaped receive the applause due to their dexterity,
and he who has suffered, glories in the constancy with which he has
endured his punishment, and resisted the attempts to reform him.
Here, he who can "commit the oldest crime the newest sort of way,"
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INTRODUCTORY REPORT TO
is hailed as a genius of superior order, and having no interest to secure
the exclusive use of the discovery, he freely imparts it to his less in-
structed companions. Thieves, and all the other offenders whose crimes
are committed upon property, here receive the most useful instructions,
not only for perfecting themselves in their vocation, but of the proper
objects on which it may be exercised; and the comparatively short de-
tention of a large majority, gives them the means of immediately prac-
tising the lessons they have received: for it may be fairly calculated
that, of those committed for trial, three-fourths(a) escape conviction
after being detained just long enough to receive instruction in all the
mysteries of crime. This view of the danger of increasing guilt, by
communication between the guilty in different degrees, has been often
considered, and is in a great degree applicable to the association of con-
victs in a penitentiary as well as in those prisons we are now consider-
ing. But, when we add to it the serious consideration that innocence
and youth are at all times exposed to this contaminating influence; that
laws which profess to preserve the morals and purity of the citizen, are
(a) In New York, in the year 1822, there were committed to the bridewell prison, on ac-
cusations for crimes and misdemeanors, 2361 persons. Of these, fewer than 541 were
brought to trial, for that is the whole number of persons tried, including those who were not
committed but bailed; of these 541, 180 were acquitted; which produces this result.
Committed for trial,
Convicted,
2361
361
Discharged or acquitted,
2000
In 1823, were committed,
1928
The whole number tried that year was 599, of whom 177 were acquitted, so
that the number of those convicted was
422
Total discharged or acquitted,
1506
In 1824, committed,
1961
Tried 586, acquitted 169, convicted,
417
Total discharged or acquitted,
1544
In 1825, committed,
2168
Tried 547, acquitted 161, convicted,
386
Total discharged or acquitted,
1782
In 1826, there were committed, to the 20th November,
Add in the same proportion for the rest of the year,
2046
227
2273
Tried 662, acquitted 200, convicted,
462
1811
Total discharged or acquitted,
This is sufficient to show that, in every year in one of our cities, from 1500 to 2000 per-
sons of both sexes, all of whom are legally presumed to be innocent, and a large proportion
must be really so, are annually forced, by the operation of the laws, into the closest associa-
tion with the most abandoned of their species; they must eat, drink and sleep with them.
They have no retreat from the infectious atmosphere of their society; and, after having been
thus forced to enter the school of vice and criminality, the 2000 disciples are turned out to
practise the lessons they have learned! And this is the wise system of laws that needs no
amendment! This is the humane administration of them in a rich and enlightened city!
THE CODE OF REFORM AND PRISON DISCIPLINE.
325
made the instruments of their destruction; what expression can be too
strong to mark our astonishment at the apathy or indolence of legislators,
who, knowing the evils of the system, can suffer it to continue, or who
will not take the trouble to inform themselves on the subject? Indis-
criminate confinement, preparatory to the trial, has, in this report, hither-
to been considered only in its contaminating effects; and those effects
are sufficiently dreadful. But there is another view of its consequences,
its inevitable consequences, which not only shocks the understanding,
but lacerates the best feelings of the heart. The only discrimination
made between the white tenants of these places of confinement is that
of the sexes.
The women are kept in a separate apartment, the men
in as many others as the prison can afford, but without any distinction
between them. The innocent stranger, unable to find security, is joint
tenant of the same chambers with three times convicted convicts; va-
grants sunk in vice, and brutified by intoxication; perpetrators of every
infamous crime, and even with murderers taken in the fact.
Women
of innocence and virtue are sometimes forced, by this unhallowed ad-
ministration of justice, into an association with all that is disgusting in
female vice; with vulgarity in its most offensive form; with intempe-
rance sunk to the lowest depth of degradation; with every thing that
can be conceived most abhorrent to female delicacy and refinement.
This is no picture of the imagination: the reporter has seen it. It is
realized in a greater or less degree in all the cities of the Atlantic states:
and even legislators, patriotic statesmen, and benevolent philanthropists,
who have for years been legislating, and reasoning, and devoting their
time and talents to the application of solitary imprisonment to the pur-
poses of punishment after conviction, have never yet taken one efficient
step to prevent the demoralizing effects attending indiscriminate associ-
ation before trial, or to rescue the innocent not only from the infection
of such society, but from the punishment it inflicts. For what greater
punishment could be devised for a man of education and morals, used
to the refinements of good society, than to shut him up night and day,
for weeks and months, in a room crowded with the vilest of the vile, with
men stained with every crime? or to a woman, not sunk herself in vice,
to be associated with the most abandoned of her sex? Yet such is the
humanity, the justice of our boasted jurisprudence. We begin by in-
flicting this moral punishment on one presumed, by the first principle
of our law, to be innocent: we add to it the physical evil of close con-
finement, without any of the conveniences of life, for an unlimited
period; and when perhaps his morals are corrupted by the society
which the justice of his country has forced him to keep, and his health
is destroyed by the rigour of imprisonment, his innocence is declared, and
he is restored to society either to prey upon it by his crimes, or burthen
it by his poverty. What greater moral or physical evil, it may be asked,
would have been inflicted on the guilty, than this which the innocent is
made to suffer? An eye witness to more than one of the scenes he has
described, and which, he repeats, are not exaggerated in the description,
the reporter was deeply impressed with the necessity of a radical reform
in the system of detention before trial, and has embodied it in the code
which he presents. Persons whose liberty, for the good of society,
must be restrained, are either those upon whom imprisonment is im-
posed merely for the purpose of securing their appearance when the
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INTRODUCTORY REPORT TO
purposes of justice require it, or those upon whom it is inflicted as a
punishment.
The detention of those of the first description, to be just, must not
only be necessary, but must be attended with no privation that is not
absolutely required for the end proposed, and for the preservation of
order.
Each of these two divisions is composed of several subordinate classes,
for the government of which different rules are necessary.
None are
comprehended in the first, who are able to find a sufficient pledge that
their personal attendance will be given when it is called for. The pur-
poses of the projected code require, that those comprising this division
should form three classes.
1. Persons whose testimony is necessary for the investigation of some
important charge.
2. Those accused of misdemeanor.
3. Those charged with crime.
The first of these classes is separated from the two others by an evi-
dently marked distinction. Those who compose it are not presumed
to be guilty of any offence; the temporary privation of their liberty is
a necessary sacrifice for the safety of society; it is taken on the same
principle that justifies the appropriation of private property for public
purposes, and it carries with it the same right of indemnity; which
indemnity the code does not fail to provide.
With respect to the two other classes, there is this difference, that,
in these, there is a presumption of guilt, arising from an accusation on
oath. The maxim, that every man is presumed innocent before con-
viction, is, like many other legal maxims, true only to a certain extent.
In its application, it can mean only that proof must precede conviction,
and that accusation alone is not one of those presumptions which throws
the burthen of proof on the accused, and cause him to be believed guilty,
unless he shows himself innocent. But it is not true as respects per-
sons accused on oath in a legal form. This is sufficient to justify every
measure for securing the person, because it creates such a presumption
of guilt as raises a probability of an attempt to escape punishment, and
on the degree of this probability is founded the distinction between the
second and third classes: the motive to attempt an escape being greater,
in proportion to the magnitude of the punishment.
For these reasons,
the code directs that prisoners of the first class, to whom no offence is
imputed, shall enjoy every alleviation of their misfortune, not incom-
patible with the maintenance of order, that their own means can pro-
cure. The second class being accused of an offence, punishable when
proved, by a comparatively light penalty, neither the temptation to
escape, nor the evil consequences to society, should it be effected, are
so great as to justify a rigour of confinement equal to that which is necess-
ary to secure the third class, accused of crime. These degrees are
distinctly marked in the code, but it carefully provides that none of those
comprehended in this division, shall suffer any other inconveniences
from their detention, than those necessary to secure their personal ap-
pearance, and to prevent the evil association, no less requisite to pro-
tect their own morals against the contagion of vice, for this classification
is essential to the other and no less important design, which has been
before stated in this report, that of separating the persons composing
THE CODE OF REFORM AND PRISON DISCIPLINE.
327
the two first classes from any communication with those of the third,
and the individuals of this last from any intercourse with each other.
The presumption, before alluded to, also justifies this measure. It is
one of protection, from which the innocent have every thing to gain,
and of which the guilty cannot complain: for it imposes no unnecessary
restraint, and takes from them only the power of corrupting and being
further corrupted. The danger of guilty associations; the duty of
avoiding them by a careful separation of the innocent from those who
labour under a presumption of guilt; of those accused or convicted of
offences, implying no great degree of moral turpitude, from those who
are presumed or known to be guilty of crimes which evince depravity
of mind and manners; of the young from the old offender; are considera-
tions on which the Code of Prison Discipline rests; and on the Code of
Prison Discipline depends the whole system of penal law. It is for this
reason that classification before trial has been provided for with the
same care that is required after conviction; and it has been particularly
urged in the report, from a conviction that its importance in penal juris-
prudence has not hitherto been properly appreciated. It is proposed,
not only that the place for this confinement shall be separate from that
in which it is inflicted as a punishment, but it is called, not a prison,
but a HOUSE OF DETENTION merely, that the name may not carry with
it any idea of infamous punishment. The marked distinction in the
penal code, between crimes and misdemeanors; the degree of moral
guilt in the former, with which the latter is, for the most part, not in-
fected; renders a correspondent difference necessary in the plan and
nature of the punishment inflicted on them respectively.
After considering imprisonment as a necessary restraint merely, the
only just character which, before trial, it can have, and showing the
provisions in the Code of Prison Discipline adapted to this end, it re-
mains to be considered in its double capacity, as a punishment and the
means of reform.
The nature, properties and efficacy, of imprisonment, as a means of
punishment, have been so fully discussed in the Introductory Report to
the Code of Crimes and Punishments, that no more will be said here
than is necessary to elucidate its modifications and combinations with
the reformatory part of the plan.
Of imprisonment, the Code of Crimes and Punishments directs four
grades simple imprisonment, simple imprisonment in close custody,
imprisonment with labour, and imprisonment in solitude.
The two first are applied to offences involving no great degree of
moral wrong, and therefore ought not to be confounded with others in
which depravity is apparent. Some loss of reputation, when the laws
are just and impartially administered, necessarily is incurred by the in-
fliction of every punishment. But disgrace ought to be attached to those
only which are inflicted for crimes implying moral depravity. Hence
the distinction which the law has drawn, and which the Code of Prison
Discipline must execute, between misdemeanors and crimes. To mark
this distinction, different places, as well as a difference of treatment, are
necessary.
It would be approximating these degrees of offence too closely, to
commit to the same prison the criminal and the misdemeanant.
A man
of worth and integrity may be guilty of breaking the provisions of mere
positive law; but it would be confounding all ideas of proportion in
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INTRODUCTORY REPORT TO
punishment to conduct him to the same prison with the thief or assassin.
A department, therefore, in the house of detention is designated for of
fenders of this description, whether the sentence be simple confinement
or imprisonment in close custody. The discipline applicable to them
is also necessarily different from that required in the penitentiary as
no great moral guilt is implied in the offences of which they have been
guilty, and the detention is limited to short periods, so the imprison-
ment is intended more for punishment than reformation. In this, as in
all other places of confinement, under this system, complete separation
at night is strictly enforced; the means of education and religious in-
struction are provided; seclusion is graduated according to the sentence;
good wholesome food and comfortable lodging are provided at the public
expense; labour is permitted but never enforced; vicious associations
precluded, but close confinement never resorted to but when directed
by the judgment, or rendered necessary to preserve the order of the pri-
son. The distinction between simple imprisonment and confinement in
close custody, is sufficiently explained in the Code of Crimes and Pun-
ishments; and the precise rules laid down in the Code of Prison Discipline
for the treatment of prisoners under these punishments is calculated to
prevent oppression, on the one hand, and on the other, strictly to enforce
the execution of the sentence. How different in its very nature! How
infinitely so in its effects, is imprisonment, under these regulations, from
the same punishment as usually inflicted for slight offences! The hor-
rors of a bridewell have been faintly described, yet it is such that the
misdemeanor under the present system, in most of the states, is com-
mitted, to pass the period of his confinement without labour or instruc-
tion; and either in the congenial association with vulgarity and vice to
forget that he is in a place of punishment, or, shrinking from their ab-
horred contact, to find the physical evil of imprisonment increased be-
yond calculation by a moral evil which is inflicted without being
ordained by the law: whereas, on the plan I propose, no greater evil
being suffered than precisely that directed by the sentence, and nothing
left to the discretion of turnkeys or keepers, the judge is enabled, with
a precision before impossible, to apportion the punishment to the offence.
Heretofore, however slight the infraction of law that involved the pen-
alty of confinement, an indefinite evil of bad association was necessarily
annexed to it: and if a respectable man, for an imprudent breach of the
peace, or for intemperate expression in court, should be committed to
prison for a few days, it depended on the accidental circumstance of the
numbers in the bridewell, and sometimes on the disposition of the
keeper, or, what is worse, on the wealth of the party, to determine
whether he should pass those days in a comfortable apartment, making
merry with his friends, or should drag them on in the society of felons.
Now, the magistrate will know the extent of the punishment he awards.
Simple imprisonment is defined, its privations, its indulgences, the
penalties attending the abuse of them; every thing is accurately
marked. Within certain limits traced by the law, these indulgences
may be restricted or enlarged by the judge, not by the jailer; according
to the circumstances of the offence, not according to the caprice of a
turnkey, or the capacity of the prisoner to purchase his favour. And
simple imprisonment, the lowest grade of corporal punishment, formerly
an engine of torture to some, to others a mockery of justice, to all the
means of depraved and depraving associations, becomes, in the hands of
THE CODE OF REFORM AND PRISON DISCIPLINE.
329
a discreet judge, an elastic instrument of coercion that may be made to
press on the smallest transgressions, or expand to fit the highest misde-
meanor to which it is applied.
Imprisonment in close custody is the next grade; and here the same
strict rules to limit the discretion of the keeper, are applied. In all the
provisions of this code the great truth is never lost sight of, that every
evil inflicted, beyond that which is necessarily included in the sentence,
is illegal, is cruel, is tyrannical. Hence the care in the codes that are
submitted, first, to make the judge confine himself in his sentence strictly
within the limits of the discretion that is given him, and to exercise that
discretion as much as possible by the application of the general rules that
are prescribed to guide his judgment; and afterwards, when he has pro-
nounced, to take away all other discretion that might alleviate, increase,
or in any manner alter the punishment, except in the cases specially
provided for. In the case of simple imprisonment in close custody,
these rules and exceptions, it is thought, will be found to answer these
ends. This grade of punishment is the last and highest of those inflict-
ed for misdemeanors; as it is intended by the Code of Crimes and
Punishments to approach the severity, but not to be attended with the
degradation of penitentiary confinement in solitude, so the Code of
Prison Discipline, to give effect to this distinction, has prescribed a treat-
ment that should mark, both to the sufferer and to others, that although
the law punished his act as an offence, and doomed him to a prison for
punishment, and to solitude and reflection for repentance, yet it does
not confound his offence with those which, by the general consent of
the civilized world, has been characterized as infamous. This important.
distinction, fully discussed in the preliminary report to the former
Code, is referred to here, only to mark the reason of the different places
assigned to these two species of close custody, and to account for the
different discipline by which they are respectively regulated.
We come now to the beaten ground of penitentiary discipline. The
first remark necessary to explain the nature of that system I have ven-
tured to recommend is this: that the penal code assigns this punishment
to no offences but such as suppose in the offender a depravity and cor-
ruption of mind which requires the application of reformatory discipline
as well as punishment-they must not be separated. And with the
respect due to the great writers who have devoted their talents to this
interesting subject, it may be permitted perhaps to suggest, that most
of them err in considering the true end of penal laws to be either punish-
ment alone, or reformation alone. A good system must combine them:
and the great excellence of the penitentiary plan is, that the process.
of reformation cannot be carried on but by privations and sufferings
which, if they do not succeed so as to reform, must necessarily deter
from a repetition of crime in as great a degree as any other bodily in-
fliction could. If the reformation is complete, we have the double
assurance arising from the moral restraint and the remembrance of the
physical as well as mental suffering. As an example to deter others,
penitentiary imprisonment has been considered to be defective in this,
that here the real is greater than the apparent suffering; whereas, it
ought to be directly the reverse; the apparent should exceed the real
pain; because the object of deterring others would be attained with as
little injury as possible to the sufferers-it being a principle that no
more evil than is necessary to produce that effect ought to be inflicted.
2 R
330
INTRODUCTORY REPORT TO
The principle is true when modified so as to require the real suffering
to be sufficient for deterring the criminal himself, and the apparent not
to be so great as to shock by a belief that it is cruel or disproportioned
to the offence: but is the application of it to penitentiary imprisonment
well made? The prisoner is not, say those who use this argument,
always exposed to view, and, when he is seen, his appearance may not
indicate the suffering which he undergoes. The misery of a restraint
for years, perhaps for life, cannot show itself in the few moments of a
casual visit; he appears well fed, well clothed, and the labour which he
is seen to perform is moderate; there is nothing therefore in the aspect
of the man to show the wretchedness that must be created by a whole
life doomed to forced labour and degrading subjection. In this reason-
ing, however, we lose sight of two operations; the one going on in the
mind of the convict, the other in that of the man upon whom his
punishment is intended to be as an example; both of which essentially
lessen the force of this objection. By the first, the sufferer becomes
by habit, if not reconciled to his punishment, at least much better able
to bear it. Some "strange comfort" finds its way into his cell, and
illuminates it with a hope which, though long deferred, does not al-
ways sadden the heart: employment interrupts uneasy thoughts during
the day, and produces the total oblivion of them by sound sleep at
night; and the misery of confinement for life, spread in equal propor-
tions over each day, is so much less in any particular time, that, in
many cases, the apparent is greater than the real suffering of the con-
vict. On the other hand, he who is tempted to offend, and may be
restrained by the fear of punishment, will add to that which he knows
to exist, but which he does not see, all those horrors by which mystery
always aggravates apprehended evils. Circumstances, too, may be su-
peradded, to strike the imagination and increase this effect, without
increasing the real suffering of the prisoner, while they augment its
apparent intensity. Thus imprisonment even tested by this rule, is far
from being so inefficient an engine of punishment, whether considered
as the means of deterring the offender himself or others, as the objection
supposes. And, even if we should discard the idea of reformation,
penitentiary imprisonment has advantages which few other modes of
punishment possess. It is permanent; the prison is always seen; and
even if we do not visit its gloomy cells, the imagination will people
them with tenants of its own creation, more squalid in appearance and
hopeless and dejected in mind, than the real culprits who inhabit them;
these too will have enough of suffering (discarding any but that au-
thorized by law), to leave a lasting impression, and to prevent, if any
thing short of reformation can prevent, a repetition of guilt. What-
ever advantages penitentiary imprisonment, however, may possess as
a punishment, it is certain that all punishments, considered merely as
such, have failed in preventing offences; and the severest have always,
without exception, been found the least efficacious. But, if punishment
alone is inefficient, the reformation of the offender, if it were possible
to effect it without punishment, would be so in the same or a greater
degree; the reformation of one offender would have little effect on his
fellows, unless indeed as an additional inducement to proceed: but to
refute this argument is nugatory, because no means of reformation have
been proposed, or can well be imagined, that can be applied without
imprisonment or other restraint; but imprisonment or restraint is an
THE CODE of reform AND PRISON DISCIPLINE.
331
evil to the sufferer, and all evil imposed in consequence of crime is
punishment: all reformatory discipline therefore is necessarily con-
nected with punishment; and it would, but for one consideration, be
investigating the truth of a theory inapplicable to the subject if found
to be true, were we to inquire whether reformation ought to be the
sole object of penitentiary discipline. The consideration which alone
renders the inquiry proper, and at the same time highly important, is
this that if reformation of the offender be the only object, and the ex-
ample of the punishment is not to be considered, then the endeavour
in establishing a mode of discipline should be to render it as light as
possible, consistent with the end to be attained, which, by the argu-
ment, is reformation alone; because it is a true principle, that no greater
evil ought ever to be inflicted than is necessary to the end; and there-
fore, if some legislator, a proselyte to this doctrine, should believe that
mild persuasion and indulgence were better instruments of reformation
than coerced labour and restraint, and should act on this belief, the ex-
ample of the punishment to deter would be lost; and though one con-
vict might go out a real or pretended saint, seven sinners would pursue
his track of profligacy, secure that, even if detected, instead of punish-
ment they would receive only advice and indulgence. The doctrine,
therefore, that reformation is the sole end of penitentiary punishment,
deserves to be examined. If it mean the reformation of the culprit,
and of all who might follow his example, as the language used by one
of its advocates(a) would perhaps justify us in believing, the dispute
is one only of words; for if the punishment of one, or the reformation
of one, prevents the other from committing the crime, it must be because
he fears the evil of the reformatory discipline; he is then deterred by
the example; and we arrive by different roads to the same point. But,
more fairly considered, the argument is this: crime is an evil, punish-
ment is an evil; to punish, therefore, is to multiply instead of diminish-
ing it, unless it will deter the offender as well as others: but it is proved,
by long experiment, that punishment has failed in this effect: therefore
it is useless. Again, experience has proved that severe are much less
efficacious than milder punishments; it is fair, then, to believe that the
more you diminish the severity of your laws, the more efficacious will
be their operation: and by one consequence further, if crimes decrease
in the same ratio with the severity of penalties, that it is not the penalty
that deters; and if it does not deter, it is not only useless but wrong,
because we set out with the incontrovertible position that this is the
only legitimate object of punishment: if crimes have been diminished
by penitentiary imprisonment, then it could not have been the punish-
ment that operated, it must have been something else, and that some-
thing should be the great object to keep in view-it is reformation.
A great error at the bottom of all this reasoning is one already
referred to, that reformation is considered abstractedly, without any
consideration of the means by which it is to be brought about, which
is the evil or the punishment of seclusion, and which is inseparable.
from it: another not less striking is, that, supposing reformation effectu-
ally to prevent a repetition of the crime by the offender, the reasoning
gives us no means of discovering how this will operate to deter others,
except through the fear of the reformatory discipline, which, being
from its nature a punishment, is discarded by the argument from hav-
(a) Roscoe.
332
INTRODUCTORY REPORT TO
>
ing effect. The other fallacies are, first, in placing crime and punish-
ment as evils of the same nature. Crime is an evil operating on society;
punishment, in the just degree that will prevent or lessen crime, so far
from being an evil, is a good; its pain is only felt by the delinquent :
the immediate pain of the crime may perhaps only affect the individual
sufferer by it, but the alarm it creates, the certainty that, unless re-
pressed, it will be repeated, spreads through the whole community,
and the uncertainty who will be its next victim, makes it an evil to all.
The error lies in taking that for granted which is in dispute, that the
dread of punishment does not deter from offences. And when that
comes to be proved, it is done by another fallacy; there have always
been punishments and there have always been and still are offences; if
punishment would prevent them, there would be none.
But my argu-
ment is, not that punishment will totally prevent, but that it will
diminish crimes; and in order to prove that it has not this effect, it
would be necessary to show a state of society in which there was neither
punishment nor crime. Besides, to convince us that punishment in
its nature can have no effect, it must be shown to have failed when
applied in its most perfect form. But no one pretends that this experi-
ment has been ever tried: on the contrary, those who contend for its
efficacy, when properly applied, have demonstrated that, throughout
the world it has, in all ages, been wofully deficient. No one has yet
gone so far as to draw the conclusion that, because mild have generally
been found more efficacious than severe punishments, therefore no
penalty ought to be annexed to offences; and yet, if we assert that re-
formation is the only object, this is the plain and inevitable result: for
then every pain, however small, inflicted as a punishment, would be a
useless, and therefore an improper evil.
Imprisonment, therefore, is to be used, in the plan I propose, to
punish as well as to reform. But to make imprisonment, especially if
coupled with labour, a proper sanction, its details must be strictly defined
by the law. Any discretion left to the jailer as to the mode of inflict-
ing it, makes him, and not the judge, the arbiter of the culprit's fate.
He may, without proper limits to his authority, change the sentence of
a few years confinement into the same period of exquisite misery,
followed by loss of health or of life; and he may do this without incur-
ring any penalty: for where a full discretion is given, there can be no
penalty except in extreme cases for its abuse. If he may, at his dis-
cretion, inflict stripes for disobedience or want of respect; if, in the
language held from the bench in New York, it is his duty, "by all the
means in his power, to make the convicts feel the awful degradation
and misery to which their vicious courses had reduced them," and
"that the ordinary sympathies of our nature could not be extended to
them;" if this be permitted, or especially if inculcated as the duty of
the keeper, imprisonment is the worst of all punishments, because the
most unequal. It is, then, no more the wisdom of the law applied to
the case by the discretion of the judge that apportions the punishment, but
the caprice or passion of an individual in the exercise of the fearful duty
of forcing a convict to feel the awful misery and degradation of his
situation. If labour be superadded as a punishment, the danger of this
discretion is greatly increased. The same labour may be misery and
death to one, and no more than wholesome exercise to another; and the
greatest abuse and oppression may be justified by enforcing a literal
execution of the sentence. The law, then, must, in every particular
THE CODE OF REFORM AND PRISON DISCIPLINE.
333
that can be foreseen, regulate the conduct of those to whose keeping the
prisoner is to be committed; and after every precaution that human
prudence can take, the carelessness, or passion, or pride of opinion in
the keeper, may greatly counteract the operation of a good system,
and his intelligence, firmness, humanity and strict attention, may cor-
rect some of the evils, and supply some of the omissions, which even
the best cannot escape. For this reason the importance of this office
is inculcated in the text of the code; and the qualities required for its
exercise are pointed out as a guide to the selecting power, and a lesson to
him who is chosen, that the one may not commit the fatal error of
underrating the talents necessary for the employment, and that the
other may feel the dignity with which he is invested, as well as the
responsibility imposed on him by the law. This was the more necess-
ary in order to counteract a prejudice against the employment of those
to whom the custody of prisons has been for many ages confided. A
well-founded prejudice, while the jailer was only appointed to prevent the
escape of the promiscuous assemblage of vagrants of both sexes, consist-
ing of unfortunate debtors, of innocent or guilty prisoners committed for
trial, and of convicted felons awaiting an ignominous death, who were
placed in his custody; while he had no moral duty to perform, and was
the mere Cerberus to guard the doors of a terrestrial Tartarus, such a
prejudice was just and unavoidable; and as one part of the duty of a
jailer to prevent escapes, necessarily continues to be vested in the warden,
the enunciation in the code becomes proper, in order to break the chain
of ideas which might otherwise, from that circumstance, assimilate the
character of an office calling for high talents, and honour and integrity,
with that of an employment the natural tendency of which was to make
him who exercised it an extortioner and a petty tyrant.
I return to the position, from which I may seem perhaps to have di-
gressed, that the law should be so framed as to restrict as much as poss-
ible the discretionary power of the keeper; it must designate the
punishment due to the offence, either by an invariable rule, or by a
discretion left to the judge to make one within certain limits. The
judge must apply this rule, by declaring the punishment, if it be fixed;
by apportioning it to the degree of the offence, if he have a discretion.
The punishment once ordered, that system is strangely defective which
unnecessarily permits it to be aggravated or alleviated by an inferior
officer, at his will. It deserves a worse epithet if it hold out temptations.
for him to do it; and the strongest that could be used to express dis-
approbation, would be merited if it is inculcated as a duty. But the
system of social forced labour makes this discretionary power unavoid-
able; for nothing, we are told, (and I believe told truly), nothing but
the lash can preserve the proper discipline in such an association. The
punishment, then, necessary to execute the sentence of the law is on
this plan, so far from being directed by the sentence, is one expressly
prohibited by the law under which that sentence is pronounced, and
therefore ought never to enter into any subordinate part of the system.
What could be more incongruous than to snatch the scourge from the
hands of justice to place it in those of caprice; to declare it too severe,
and degrading, and demoralizing, and unequal, to be applied as a pun-
ishment for CRIME, at the sound discretion of the judge, and, at the
same time, direct that it shall be inflicted for disobedience to a subal-
tern officer of a prison at his pleasure? I could not, therefore, offer any
334
INTRODUCTORY REPORT TO
plan of imprisonment that would make this absurdity necessary. Other
disadvantages which are inseparable from this discipline, have been
detailed when I described that of the New York prisons, of which it
forms so prominent a feature. I discard it, therefore, being firmly
convinced that, as an instrument of punishment, it is not only defective
and dangerous, but that it cannot be brought to produce that reformation
which is one of the essential parts of my plan. But social labour, whe-
ther general or in classes (if those classes are at all numerous), cannot be
carried on without it, unless the security and order of the prison be
put at hazard.
Social labour, therefore, must be abandoned, or so mo-
dified, and admitted with such precautions, as to render this anomaly
unnecessary. The manner in which this has been attempted, requires
some previous examination of the principles on which it is founded.
We have, in former parts of this report, considered the question
whether punishment, as an object distinct from reformation, should not
enter into the sanction of penal laws; and were brought to the double
conclusion, that it was necessary, and that no reformation could be pro-
duced without it. Imprisonment has been examined as a means of inflict-
ing punishment, and in this and in the introductory report to the Code of
Crimes and Punishments, has been compared with other corporal punish-
ments, and been found to possess, in a greater degree than any other, the
essential properties to render it effectual. Here we need only add, that
there is no other means by which a reformatory process (necessarily re-
quiring time and a succession of operations) can be carried on; no labour,
no instruction, without detention, no reformation without employment,
without instruction, religious, moral and literary. It must be remem-
bered that we are now speaking of the prison discipline proper for
convicts, for men already corrupted; to whom, for the most part, labour
was necessary for support, and who resorted to crime in order to avoid
it.
Labour consists of a number, of a succession of bodily exertions,
always painful when first endured, becoming tolerable only by the
habit of making them, and never voluntarily resorted to but from the
hope of some enjoyment they are to produce; these two causes com-
bined give to an occupation painful in itself, all the characteristics of a
pleasurable pursuit; habit destroys the sense of bodily pain; hope
anticipates the reward it is to bring, identifies the enjoyment with the
means of procuring it, and, by a wise use of the faculties bestowed by
our beneficient Creator, labour becomes cheerful, and its pain a pleasure.
This might be further illustrated by investigating the cause of pleasure
resulting from the chase, and other laborious recreations, which are
often voluntarily pursued so far as to become toilsome and fatiguing in a
degree not frequently suffered by the severest labour. In these pursuits,
indeed, the exhilarating effects of fresh air, of society, and a view of
the beauties of nature, give a present enjoyment that is not found in
daily employment; but these would never induce us to go beyond the
point of agreeable exercise: they are pushed into fatigue by the causes.
that have been stated, and by the self-satisfaction arising from a con-
sciousness of dexterity and skill. The anticipation of the applause he
will receive, of the festivity, or the domestic comfort, that awaits his
return, is identified in the mind of the sportsman with the fatigue he
undergoes, the pain of which habit has already alleviated; so that
the toils and the pleasures of the chase have become terms that are
nearly synonymous.
THE CODE OF REFORM AND PRISON DISCIPLINE.
335
The great painter of human passions has beautifully delineated this
association, in the picture of a young lover toiling through a servile em-
ployment, with the hope of being rewarded by the presence of his mis-
tress, and referring the patience and even the pleasure with which his
toil was endured to this very illustration:
There be some sports are painful; but their labour,
Delight in them sets off.
Whenever this association of ideas is broken, labour is regarded as
an evil unmitigated by any alleviating circumstance; no habit will in-
duce a continuance of it, and it will never be resorted to but in moments
of pressing distress, the idea of which then becomes incorporated with
it and embitters its pains. Labour forced by stripes must always pro-
duce this dreadful concatenation of ideas; and whenever the coercion
ceases, the natural aversion to fatigue will combine with the remembrance
of the evils with which it was embittered, and make the culprit fly to
vice to forget, or to crime to avoid it.
If these reflections be well founded, employment should be offered as
an alleviation of punishment, not superadded to aggravate it. Although
labour is painful, yet the separate exertions, of a succession of which it
is composed, are not so in themselves; it is their repetition only which
makes them irksome: there is an innate love of action in human nature,
which renders its restraint the principal evil attending imprisonment :
and involuntary idleness, unbroken by any mental or bodily occupation,
creates a degree of suffering which, setting aside acute physical pain,
can only be aggravated by uninterrupted solitude. Solitude without
physical employment may be rendered tolerable, if the mind can be di-
verted from its own reflections by receiving intellectual instruction from
others, or amusement from books: these, also, except so far as concerns
a future life, are indulgences withheld from the convict by the tenor
of his sentence.
Next to the privations of liberty and employment, and perhaps supe-
rior in intensity to the last, is that of the usual indulgence of the appetite
for food and drink to inflict this, so far as to make the patient suffer
by hunger or thirst, would be at war with the first principles of this
system; it would be causing an evil, the degree of which could never
be measured so as to be directed by the sentence; and if left to the dis-
cretion of an executive officer, would cause a suffering not directed by
the law or the judge; and in most cases would change a sentence of con-
finement into one carrying with it loss of health or life: food, therefore,
wholesome in quality, and in abundance sufficient to satisfy the appe-
tite and support life, but of the plainest kind, without any variety to
stimulate, or delicacy to gratify the appetite, is allowed to the convict,
but it is all he is entitled to; and thus another privation is added to those
already enumerated, as concomitants of the punishment directed by law.
But this is not all men desire not only liberty, recreation, and the in-
dulgence of the appetite; but also a shelter and clothing, fitted to the
variations of the season: and in civilized life there are certain refine-
ments of indulgence in these articles, the privation of which becomes a
severe punishment, when we are reduced to what is strictly necessary.
The action of these natural inclinations, their restriction, and partial in-
dulgence, constitute the moving power of my system of punishment
and reformation.
336
INTRODUCTORY REPORT TO
*
Imprisonment, solitude, want of occupation, either for the mind or
body, coarse aliments, hard lodging, clothing of the roughest kind, are
the evils of which punishments are composed; their duration, their in-
tensity, their cumulation, are the means provided by the Code of Crimes
and Punishments, for adapting them to the different offences; their
alleviation in different degrees are those designated in the Code of Re-
form and Prison Discipline, for producing reform.
If the reasoning already employed be correct, no succession of in-
voluntary acts to which adults may be coerced is likely to produce per-
manent habits of reformation: they must be the effect of the will, ope-
rated upon by the judgment, producing a conviction that such acts are
beneficial; and experience must enforce this conviction, by giving the
actual enjoyment of some, and the certain hope of other benefits, that
are the result of these acts. With evil habits it is different: for the
most part they are acquired by a repetition of acts procuring sensual
enjoyment; and the judgment has so little agency in producing them,
that it must be silenced or perverted before the acts of indulgence are
done or repeated. It is for this reason that the work of reformation is
more difficult than that of perversion: the one requires intellectual
power sufficient to prefer a distant and moral good, to a present and
physical enjoyment: the other coincides with the natural propensity for
present enjoyment, reckless of what an uncertain futurity may produce.
And for this reason also it is that the work of reformation is slower in
its operation than that of corruption. A single instance in which dis-
tress has been alleviated, or expected good has been realized by labour
or exertion, would have but a temporary effect; the operation must be
repeated, and be made always to produce the same result, and the judg-
ment must be thoroughly convinced that this result is invariable, before
it can counteract in the will the natural preference of present enjoy-
ment to future good. But to produce this effect, the mind must be im-
proved by intellectual instruction; it must be taught that there are other
pleasures besides those of sense; and religion must be brought to bear
its part in the work of amelioration. The deep solitude of the prisoner's
cell, the awful impression which must be made on his mind, by con-
trasting the fleeting enjoyment produced by his crime with the lasting
evil in which he is plunged by its consequences; the privation of facti-
tious excitements; with no companions to applaud his perseverance in
wrong; no means of drowning reflection by intemperance; no acute or
disproportioned pain to brace him up against real or fancied oppression;
the heart must necessarily be softened, and the spirit subdued, and the
mind prepared to receive those great truths, which, under such circum-
stances, may be inculcated to the highest advantage, more especially
when this, combined with literary instruction, is offered, not as a part
of the sentence, but as an alleviation of its rigour.
This spring, then, which sets in motion my whole machinery for pro-
ducing reform, is this: that all the acts which, by their succession, are
to produce habits of good, are to be performed voluntarily, and are
offered as alleviations of the severity of the sentence: the will must
act, or the repetition will produce no effect. But, to operate on the in-
clination, sufficient inducements must be held out to overcome the natu-
ral repugnance to labour: and this brings me back to the detail of those.
modifications of imprisonment, and its concomitant labour, which I offer
THE CODE OF REFORM AND PRISON DISCIPLINE.
337
instead of the strict seclusion of the Pennsylvania(a), or the severe dis-
cipline of the New York system.
To understand them, a clear idea must first be given of the place of
confinement. It consists of an arched cell for each prisoner, of small
dimensions, but well ventilated, and comfortably warmed, communi-
cating with a small court, surrounded with a high wall. The sentence
of the law is confinement to the cell, supported by wholesome but
coarse food, in sufficient quantity to satisfy hunger, but without occupa-
tion, and with no other society than the attendance of those officers who
minister to the physical wants of the prisoner, and to his religious in-
struction. Privation of employment is denounced as a part of the pun-
ishment; and this circumstance alone would, with most men, cause it to
be considered as an evil, and the experience of its effects will soon cause
it to be felt as such; of course it will be connected with the idea of suf-
fering; and occupation being denied, will, from the propensity to wish
for that from which we are expressly debarred, be estimated as a good,
and desired with an intensity proportioned to the strictness and length
of the privation. To strengthen this natural desire, other inducements
are offered. He who labours lessens the expense of his support, he who
works skilfully and diligently may more than repay it. The advan-
tage of this beneficial result must be felt by the prisoner as well as the
state: if the proceeds of his work should not be sufficient to cover his
expenses, it yet produces for him a better diet; and if persevered in,
and accompanied with good conduct, for certain probationary periods
of six and twelve months, during which he is permitted in the day to
leave his cell and pursue his solitary employment in the court, he is in-
dulged with the privilege of working, and receiving instruction in a
small class, not exceeding ten: but, if he acquires such proficiency in
his business as to make the proceeds of his industry exceed the expense.
of his support, he is allowed the immediate enjoyment of a part, to be
laid out in books, or such other articles as he may desire. Those of
food or drink are excepted, in order to avoid irregularities that would
otherwise be unavoidable; and the residue of the surplus is an accumu-
lating fund to be paid to him on his discharge. To give the greater
effect to these inducements, they are not offered to the convict on his
commitment to the prison: first he must know and feel the unmitigated
punishment; his own reflections must be his only companions for a pre-
liminary period, during which he is closely confined to his cell; he
must live on the coarse diet allowed to the unemployed prisoner; he
must suffer the tedium arising from want of society and of occupation, and
when he begins to feel that labour would be an indulgence, it is offered to
him as such; it is not threatened as an evil, nor urged upon his acceptance
as an advantage to any but to himself; and when he is employed, no stripes,
no punishments whatever, are inflicted, for want of diligence; if not pro-
perly used, the indulgence is withdrawn, and he returns to his solitude.
and other privations, not to punish him for not labouring, but merely
because his conduct shows that he prefers that state to the enjoyment
•
(a) Mr Roberts Vaux, one of the commissioners for building the new prison, a gentleman
to whose instructive publications and conversation I am indebted for much useful information,
has informed me that the plan of strict seclusion which I have quoted has never received
the sanction of the legislature, and that there is a probability it will be so modified as to admit
labour and instruction.
2 S
338
INTRODUCTORY REPORT TO
with which employment must always be associated in his mind, in
order to produce reformation. If it has been shown that involuntary
acts of employment will not produce a lasting habit, then, if there be
any such as will not accept these alleviations of their imprisonment,
upon them the imprisonment must operate solely as a punishment
But experience shows that these exceptions will, if any, be very few:
for employment, even under the lash, is in most cases preferred to
solitude.
It is no unimportant part of this plan, that education and intellectual
improvement, as well as mere physical enjoyments, are held out as in-
ducements for the exercise of industry, skill, and good conduct. These
are to be rewarded by the use of books combining entertainment with
instruction; the instruments, and other means, of exercising the mind
in science, or the hand in the delicate operations of the fine arts, of de-
veloping talent or improving skill. Such pursuits offer, perhaps, the
most efficient means of reformation; they operate by reconciling the
convict to himself, which is the first and most difficult point to be
gained. The daily exercise of mental powers, the consciousness of
progress in useful knowledge, must raise him in his own estimation ;
and this honest pride, once set at work, will do more to change the
conduct and purify the heart, than any external agency, however con-
stantly or skilfully applied.
Let it not be said that this is a theory too refined to be adapted to
depraved and degraded convicts. Convicts are men. The most de-
praved and degraded are men: their minds are moved by the same
springs that give activity to those of others; they avoid pain with the
same care, and pursue pleasure with the same avidity, that actuate their
fellow mortals. It is the false direction only of these great motives
that produces the criminal actions, which they prompt. To turn them
into a course that produces the criminal actions which they prompt.
To turn them into a course that will promote the true happiness of the
individual, by making him cease to injure that of society, should be the
great object of penal jurisprudence. The error, it appears to me, lies
in considering them as beings of a nature so inferior as to be incapable
of elevation, and so bad as to make any amelioration impossible; but
crime is the effect principally of intemperance, idleness, ignorance,
vicious associations, irreligion and poverty-not of any defective natu-
ral organization; and the laws which permit the unrestrained and
continual exercise of these causes, are themselves the sources of those
excesses which legislators, to cover their own inattention, or indolence,
or ignorance, impiously and falsely ascribe to the Supreme Being, as if
he had created man incapable of receiving the impressions of good.
Let us try the experiment, before we pronounce that even the degraded
convict cannot be reclaimed. It has never yet been tried. Every
plan hitherto offered, is manifestly defective, because none has con-
templated a complete system, and partial remedies never can succeed.
It would be a presumption, of which the reporter's deep sense of his
own incapacity renders him incapable, were he to say, that what he
offers is a perfect system, or to think that it will produce all the effects
which might be expected from a good one; but he may be permitted,
perhaps, to believe, that the principles on which it is founded are not
discordant; that it has a unity of design, and embraces a greater com-
bination of provisions, all tending to produce the same result, than any
THE CODE OF REFORM AND PRISON DISCIPLINE.
339
that has yet been practised. Whether those principles are correct, or
the details proper to enforce them, the superior wisdom of the legisla-
ture must determine. But, to think that the best plan which human
sagacity could devise will produce reformation in every case; that
there will not be numerous exceptions to its general effect, would be to
indulge the visionary belief of a moral panacea, applicable to all vices
and all crimes; and although this would be quackery in legislation, as
absurd as any that has appeared in medicine, yet, to say that there are
no general rules by which reformation of the mind may be produced,
is as great and fatal an error as to assert that there are in the healing
art no useful rules for preserving the general health and bodily vigour
of the patient.
A reference to the text of the code is all that is necessary for the
details by which it has been endeavoured to temper the rigour of solitary
confinement, by useful employment and instruction, as a favour, to be
withdrawn when neglected or abused; by the hope of enjoying society
after a probationary period; and by the immediate rewards of labour
and skill, in procuring social comforts and other conveniences. The
indulgence of society in labour and instruction, which is offered as the
greatest inducement to good conduct, has its value enhanced by the
delay and perseverance in industry, which are prescribed as necessary
to its attainment; and, when granted, the number in each class is so
small as to preclude the necessity of any severe discipline to maintain
order, which, it is supposed, may be preserved by the precautions that
are prescribed, by the fear of forfeiting the privilege, and by the ad-
vance towards reformation, which must be made before the indulgence
is granted.
The average term of confinement may be assumed to be from four
to six years, for such crimes, affecting property, as are attended with
no circumstances in their commission to show greater depravity than
the crime itself supposes; of this time, six months must necessarily be
spent in solitude, with no alleviation but labour; twelve more in the
same confinement, unless a desire for intellectual improvement (the
evidence of the first step towards reform), should have diversified it by
intervals of social instruction; and the remainder of the term, in con-
tinuing those lessons, and in perfecting that dexterity in mechanical
employment which is best acquired in society. A period thus passed,
without any possibility of corrupting associations, with the daily expe-
rience of the actual enjoyments gained by diligence, hearing no precepts
but those of religion, morality and science, and those inculcated not in
the harsh language of reproach, but in the mild yet firm accents of
advice, pronounced by men who take an interest in the welfare of the
convict; and with the cheering prospect of regaining, by honest indus-
try, that good opinion of society, which no one ever lost without regret:
a period thus passed, it is confidently believed, must efface bad im-
pressions, must create lasting habits of industry and virtuous pursuit,
must discharge the subject of this discipline from the prison a better, a
wiser and a happier man than he entered. But these happy effects will
be counteracted; the care, labour and expense, of your reformatory dis-
cipline, will have been uselessly incurred; if your proselyte to virtue
and industry is to have the one exposed to the seduction of his former
associates, and the other rendered useless by the want of means to exert
it. It will be in vain that you have given him the skill necessary for his
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INTRODUCTORY REPORT TO
support, if no one will afford him an opportunity of using it; or that you
have made him an honest man, if all the world avoids him as a villain
his relapse is certain, unavoidable, and his depravity will be the greater,
from the experience that reformation has been productive only of dis-
trust, want and misery. "Seven evil spirits" will take possession of
the mind that has been "swept and garnished" by your discipline, and
"the last state of that man shall be worse than the first." To avoid
this result, so destructive of the whole system, an asylum is provided
in the House of Refuge and Industry, (the other departments of which
have been already described). Here the discharged convict may find
employment and subsistence, and receive such wages as will enable
him to remove from the scenes of his past crimes, place him above
temptation, confirm him in his newly acquired habits of industry, and
cause him safely to pass the dangerous and trying period between the
acquisition of his liberty and restoration to the confidence of society.
Independently of this resource, the industrious convict receives, at his dis-
charge, a proper proportion of his surplus earnings; he receives friendly
advice as to his future pursuits, and a certificate (if he has merited it)
of such conduct as will entitle him to confidence; the consequences of
reconviction are solemnly represented to him, and his conduct, if he
remain in the neighbourhood of the prison, is carefully watched, so that
if he return to habits of idleness and intemperance, his career to crime
may be stopped by a commitment to the House of Industry as a vagrant.
The cause, the temptation, or the excuse for relapse, being thus re-
moved, it is hoped that instances of return to vicious pursuits will
become more rare, and that many will become useful members of
society, who, under the present system, either burthen it by their
poverty, or prey upon it by their crimes. The House of Refuge is
rendered the more necessary, because a man of prudence will no more
receive or employ a convict discharged from one of our present peni-
tentiaries, than he would shut up with his flock a wild beast escaped
from its keepers: but the reformatory plan, once fairly in operation,
its principles studied, developed, steadily adhered to, improved by the
light of experience, and its beneficial effects upon morals perceived,
the man who has undergone its purifying operation will, in time, be
no longer regarded with fear or contempt, and society, by confiding in
his reformation, will permit him to be honest; the House of Refuge will
then become less necessary, and its expense, of course, diminished (a).
Before I quit the consideration of this establishment, it may be
necessary to dispose of an objection sometimes raised to it, as well as
to the penitentiary: that the products of mechanical operations, which
may be carried on there, will be sold cheaper than they can be afforded
by the regular mechanic, who is burthened with the support of a family,
with rent, taxes and other charges, and thus injure the innocent, in
(a) This theory is confirmed by experience in the House of Refuge at New York. Al-
though admission into that school is obtained only by vagrancy on conviction; yet, such
reliance is placed upon the reformatory effect of the discipline, that the applications for ap-
prentices of both sexes are so numerous that they cannot be complied with. Nor is the
confidence misplaced. A single instance only having been known in which the employer
was dissatisfied with the conduct of his apprentice. After making all due allowance for the
docility of children, the same effects inay reasonably be expected, in a great degree, upon
adults, by a longer and severer course of discipline.
THE CODE OF REFORM AND PRISON DISCIPLINE.
341
order to find employment for the guilty. This objection could only
have weight if all the convicts were employed in one business, and
that in a country where there is a greater supply of labour than there
is a demand for it; but here the very reverse of this is the fact. Again,
if all the convicts should be employed in a single occupation, it must
be because there is an excess of demand for that species of labour over
the supply; and while that continues, there can be no injury: when
that demand is reduced, the business will be abandoned both within
and without the prison. As respects the public interest, there can be
no doubt, for the question reduces itself to this-whether the convicts.
are to be maintained in idleness, or suffered to contribute by labour to
their own support? And even as regards particular classes of me-
chanics, the same reasoning which would prevent their trade being
carried on in prison, would go to show that it ought to be limited with-
out. But the best answer to the objection is, that experience has never
realized any of the evils that have been apprehended.
Having passed through the different stages of confinement with the
prisoner committed for a term; having shown the hopes and fears, the
occupation, instruction and discipline, by which he is to be punished
and reformed; and, having unlocked the door of his cell, and restored
him to the world a renovated man; we must return once more to the
interior of the prison, to visit those who have by their atrocity rendered
it unsafe to trust them in that society, the very existence of which their
crimes have put to hazard. They are those whose offences are now
punished with death. Reformation enters no farther into their treat-
ment than as it concerns them individually. Shut out for ever from
civil society, its laws provide no means for their future employment;
it is indifferent as to their habits, and solicitous only that, for their own
sake, they should make their peace with Heaven: for, in avoiding to
punish with death, it would not "kill the soul."
The confinement of this class is intended for two purposes only:
first, by actual restraint, to secure society against a repetition of the
crime. Next, to deter others from committing a similar one, by the
severity of the punishment. These two purposes are attained by abso-
lute seclusion, under circumstances varied according to the enormity of
the offence. These circumstances are calculated to strike the imagina-
tion with horror for the crime, without awaking any dangerous sympa-
thy for the sufferer. A gloomy cell; inscriptions recording the nature
of the crime and the intensity of the punishment; so much of mystery
as excites the imagination; real suffering enough to deter when the veil
is withdrawn, not so much as to enlist the feelings of the community
and make them arraign the cruelty of the law; perfect security from
escape; a gradation in the discipline to show, by strong features, the
different degrees of atrocity of the crime; such are the characteristics
of the punishments substituted for that of death, now inflicted for the
different species of capital homicide. These convicts are considered,
for many purposes, to be as much dead to the world as if no commuta-
tion of their former punishment had been made; their property is di-
vided among their heirs; they are buried in their solitary cells, and
their epitaph is contained in the inscription that records their crime,
and the daily renewal of its punishment. Their existence is preserved
by the policy of the law, for reasons which it has proclaimed; and,
although they are kept within the reach of the pardoning power, yet
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INTRODUCTORY REPORT TO
that policy will be counteracted by any remission of the sentence, the
case of acknowledged innocence alone excepted.
Those who are confined for life, for a repetition of minor offences,
are considered more in the light of incurables, than atrocious offenders
whose ferocious disposition makes perpetual restraint necessary for the
peace of society. Yet a very long and uninterrupted curative process
may sometimes succeed in cases that were deemed desperate, and the
subjects of this observation have, therefore, the same advantages of in-
struction and employment offered to them, that are given to the other
convicts, in the hope that, by unequivocal evidence of reformation,
after a very long probatory period without relapse, they may be dis-
charged by the pardoning power. It is highly important, however,
that this should not be lightly or frequently exercised. Few circum-
stances have tended more directly to disappoint the friends of the peni-
tentiary system, than the counteractive operation of this prerogative:
parsimonious legislative provisions have furnished an excuse for its
exercise, to a degree that renders every attempt to punish or reform
by imprisonment, equally abortive; and, if the unhappy facility of grant-
ing pardons be not checked, it is in vain to hope that the best organized
plan will produce any good effect. Restraint will be suffered with
impatience, instruction will be unheeded, labour neglected, and counsel
derided, while the mind is kept in the feverish state of expectation,
which the daily release of fellow convicts, more guilty, perhaps, but
better befriended, must produce on those who remain. In some states
this abuse has become so prevalent, that the culprit has not only in his
favour the chance of escaping detection, or, if detected, the chance of
acquittal, but, after conviction, it has become more probable that he
will be discharged by pardon(a), than that his sentence will be exc
cuted. With so many chances in his favour, the felon continues his
game without fear or scruple. The prison loses its terrors as a place of
punishment, and its discipline becomes a mockery to those who remain,
cursing their ill fortune, and hoping that, in the next lottery of par-
dons, they may gain the prize of discharge. Before I passed from the
penitentiary discipline to another branch of my subject, it was necessary
to advert to this radical, and, unfortunately, in most of the states, this
constitutional evil, to which, of course, no other remedy can be applied
by the legislative, than the voice of expostulation with the executive
power. A very able report on this subject, made by the direction of
a society for the prevention of pauperism in the city of New York, in
the year 1822, contains the opinions of the most celebrated jurists and
magistrates in every state in the union, all of whom concur in stating
frequent pardons to be the greatest obstacle that the penitentiary sys-
tem has to encounter. Out of it has arisen another evil; soliciting
pardons, has, in some places, become a business; men who disgrace an
honourable profession, hang about the doors of the prison, bargain with
the convict, to be paid, perhaps, out of the proceeds of his crime; by
importunity or false statements, procure the signatures of respectable
men to petitions, deceive the executive power by false allegations of
reformation, and procure the pardon of the most hardened offenders;
(a) In five years, seven hundred and forty convicts were discharged by pardon from the
New York prison, and only seventy-three by the expiration of their sentence, making the
chance of impunity after conviction, more than ten to one in favour of the convict.
THE CODE OF REFORM AND PRISON DISCIPLINE.
343
who use their liberty only to commit new depredations, in the hope of
again being released; and, strange to tell, this hope has been realized
after a second and even a third sentence. Out of sixteen committed
for a second offence to the New York penitentiary, in 1825, eleven
had been discharged by pardon, and of those committed in the same
year, for a third offence, every one had been previously twice par-
doned. To arrest, if possible, the progress of this abuse, which totally
counteracts every attempt to punish or reform, the text of the code
is made to express the wishes of the legislature, and a provision is
introduced, making the soliciting of pardons, for reward, a punishable
offence.
One other institution remains to be described; one of perhaps quite
as much importance as any other in the system. It is the School of
Reform; designed for the confinement, and discipline, and instruction
of juvenile offenders and young vagrants. Of all the establishments.
suggested by the charity, and executed by the active and enlightened
benevolence of modern times, none interests more deeply the best feel-
ings of the heart. Whether we consider the evil avoided, or the
positive good bestowed, it is equally worthy of our admiration.
The provisions of law have heretofore denounced the same punish-
ment against the first offence of a child, that they awarded to the vete-
ran in guilt; the seducer to crime, and the artless victim of his corrup-
tion, were confounded in the same penalty, and that penalty, until lately,
was here, and in the land from whence we derive our jurisprudence
still is death. We have substituted imprisonment; but our laws make
no other distinction between adults and children, than that contained in
the common law, by which all above a certain age, and that a very
tender one, are supposed to have sufficient discretion to know both the
law and its penalty; and as to those who have not attained that age, it
is a matter of inquiry to be determined by evidence, and an instance is
recorded, in which an infant of nine years was convicted and executed
for murder. For the minor offences, affecting property, indictments
against children are frequent; and humanity is equally shocked, whether
they are convicted, or, by the lenity of the jury, discharged, to com-
plete their education of infamy. In the penal code which you have
under consideration, some material changes are introduced on this sub-
ject; an age is fixed, below which guilt cannot be supposed, and the in-
quiry as to discretion can only take place when the accused is above
that age, but below another, at which sufficient capacity may always be
presumed. It also contains other provisions, which govern the case in
which a child does the prohibited act, in the presence, or under the in-
fluence of a parent or superior. But, with all these modifications,
nothing materially good, under this head would be effected, if, after
conviction, the same discipline were indiscriminately applied to chil-
dren and adults. The necessity of a different course, whether for pun-
ishment, or education or reform, is so clearly pointed out by nature,
that he must be an inattentive observer of her laws, who does not per-
ceive it; and it should be considered, that, when a child of tender age
commits an offence against the law of society, he acts, for the most
part, in obedience to one which with him has a paramount force—that
of nature-who has given him strong desires to possess an ardent pas-
sion for novelty, and a free spirit, that with difficulty submits to re-
straint; while she has withheld that discretion which alone can give a
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voluntary control over those passions. For acts committed before this
discretion is acquired, or when, by the visitation of Providence, it is
taken away, it is unjust to punish, although the good of society requires
that we should restrain. Paternal, or any other authority that repre-
sents it, stands in the place of this discretion, until it is conferred by
instruction, experience, and the natural expansion of the faculties. To
this domestic lawgiver and judge, is confided, during this interval, the
task of repressing all the faults of infancy; and when they become hurt-
ful to others, he, not the child whom he ought to have restrained, is an-
swerable; civilly, if the injury were done without his connivance or
permission; criminally if it were. These are the dictates of most laws,
applicable to a period of infancy more or less indefinite, according to
different systems; but, after that period, they all abandon these sound
principles, and hold the child personally accountable to the penal law;
and if he has shown dexterity in committing the crime, or used shifts
to avoid detection, it is, by the common law, counted sufficient evidence
of a consciousness of moral guilt, and of a discretion that ought to have
prevented the offence. But they do not consider that the moral sense
is, in childhood, produced by instruction only, and the force of exam-
ple, and that, with the children who are generally the objects of criminal
procedure, instruction has either been totally wanting, or both that and
example have been of a nature to pervert, not form, a sense of right;
so that, if the want of discretion entitles to the protective power of the
law, it is due to the adolescence of children quite as much as it is to their
infancy. Either they have parents who entirely neglect the task, or
abuse the power given to them by nature, and confirmed by the laws of
society; without relations, they are thrown friendless and unprotected
into the most contaminating associations, where morality, religion and
temperance, are spoken of only to be derided, and the restraints of law
are studied only to be evaded. In either of these cases, these unfortu-
nate victims to the vices of others, have a right to demand that the com-
munity shall supply the place of their natural protectors, and teach them
the sanction of the law before they are punished for its breach.
country governed by wise laws, faithfully executed, this class of chil-
dren would be very small; moral, religious and literary education
would be brought, in such a country, within the reach of every indivi-
dual, and he would be forced to avail himself of these advantages; ours,
in this respect, is not yet such a country. We are rapidly advancing
towards this degree of perfection; but, until we attain it, the defect in
this part of our system increases the obligation on the community to be
a father to the fatherless; to snatch the innocent child from the hands
of depraved parents, and the orphan from the contamination of vice
and infamy; and, instead of harsh punishments, inflicted for offences.
which its own neglect of duty has occasioned, to remove their cause by
the milder methods of instruction and useful employment.
In a
The place for the confinement of juvenile offenders, for these reasons,
is to be considered more as a school of instruction than a prison for
degrading punishment; a school in which the vicious habits of the pupil
require a strict discipline, but still a school; into which he enters a
vicious boy, and from which he is to depart a virtuous and industrious
youth; where the involuntary vices and crimes with which his early
childhood was stained, are to be eradicated, their very remembrance
lost; and, in their place, the lessons inculcated, and the examples given,
THE CODE OF REFORM AND PRISON DISCIPLINE.
345
which would have guided him, had the duties of nature and society
been performed. From hence he begins his career of life; and as it
would be unjust to load him, on his outset, with the opprobrium which
would be inseparable from an association, in the same place of punish-
ment, with hardened offenders, it became necessary, as well from this
circumstance as from the different nature of the discipline, to separate
this entirely, both by locality and name, from the other prisons.
To argue the utility, or to descant on the humanity, of this establish-
ment, after demonstrating its justice, would be a useless task. Every
mind that has investigated the causes and progress of crime, must ac-
knowledge the one; every benevolent heart must feel the other. And
even economy, cold, calculating economy, after stating the account in
dollars and cents, must confess that this is a money-saving institution.
If it is wise to prevent an hundred atrocious crimes by removing the
opprobrium of a venial fault, and substituting instruction for punish-
ment; if it is the highest species of humanity to relieve from the misery
of vice and the degradation of crime, to extend the operation of charity
to the mind, and to snatch with its angel arm innocence from seduction;
if it be a saving to society to support an infant for a few years at school,
and thereby avoid the charge of the depredations of a felon for the rest
of his life(a), and the expense of his future convictions and confine-
ments; then is the School of Reform-a wise, a humane, and an econo-
mical institution.
I need not enlarge this report by the details for the government of
this school; they are minutely contained in the code. One principle
pervades the whole, which has been sufficiently enlarged upon that
the offences of children may be sufficiently corrected, both for the
(a) There is hardly a child who will be condemned to it (the New York House of Re-
fuge), who, if left to the course which would bring him to it, would not finally be supported by
the state as a convict. The evidence of this is, that a very large proportion who are now con-
fiend in our state prisons, commenced their career in crimes when they were children, in
some of our large cities. One
One person in particular, who is now confined in the prison at Au-
burn, was first convicted when he was only ten years old, and has since been, at different
times, twenty-eight years a convict, supported by the state, at an expense of not less than
two thousand dollars.-Report of the New York Committee.
In the Arch street prison at Philadelphia there is now awaiting his trial, for felony, a boy
of eleven years of age, who already passed a year in the penitentiary of New Jersey
for horse stealing: during this period the only lessons he received, were the details given by
his fellow convicts of their exploits; some of which he repeated to us, with a satisfaction
but ill repressed. I cannot avoid adding to this note an extract from a report on the state
of the French prisons made by Mr Deappert, which strongly exemplifies the necessity of a
complete separation of juvenile from other offenders. "There were in the same room, at
Douay, several youths, who had been sentenced to imprisonment by the correctional tribunal,
together with men of different ages, and also a man condemned to death for murder: he
requested to speak to me in private; "I wait," said he,
"I wait," said he, "the moment of execution; and
since you are the first person who has visited us, I wish to address you with confidence, and
to conceal nothing from you. I am guilty of the crime for which I have been condemned;
I have committed robbery and murder. From my infancy my parents neglected me. I fell
into bad company; my undoing was completed in a prison; and I am now about to expiate
all my faults. Among the persons whom you see in this room there are some youths, who,
with pain I observe, are preparing themselves for the commission of new crimes, as soon as
their term of confinement expires. If you could get them removed into a separate room,
this, sir, would be the greatest benefit that you could confer upon them."
2 T
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INTRODUCTORY REPORT TO
ends of punishment and example, by education and employment. If
this be wrong, the whole plan must be remodelled; but in establishing
it, I have been guided by something better than the best reasoning. In
the city of New York there is an establishment of this kind, which
can never be visited but with unmixed emotions of the highest intellec-
tual pleasure. It now contains one hundred and twenty-five boys and
twenty-nine girls, for the most part healthy, cheerful, intelligent, in-
dustrious, orderly, and obedient; animated with the certain prospect of
becoming useful members of society, who, but for this establishment,
would still have been suffering under the accumulated evils attendant on
poverty, ignorance, and the lowest depravity, with no other futurity be-
fore them than the penitentiary or the gallows. I ought not to omit
mentioning here, that the female department is superintended by a visit-
ing committee of ladies, who, at regular and frequent periods, examine
the school, converse with the scholars, encourage the diffident, reprove
the disorderly, reward the industrious, and inspire all with their own.
virtues. The code I submit, invites a similar superintendence, from
which the highest advantages, such as nothing but the benign influence
of female character can give, are expected.
The plan of indenting the scholars to useful trades has been recom-
mended, from the practical effect that has been observed at New-York.
It might at first be supposed, that an aversion would be found to taking
apprentices from such a place; but experience has proved that the con-
fidence inspired by the mode of education pursued, is so great, that
applications are more numerous, for children of both sexes, than the
rules of the institution will permit them to supply. And, although
twenty-eight boys and fifteen girls have been indented, the most favour-
able accounts have been received of their behaviour; two having
received what they thought ill usage from their masters, left them, but
returned to the school, and only one has resumed his former bad habits.
What renders the reformation of these children the more extraordinary,
is, that thirty of them had before been sentenced to the penitentiary,
from one to five different times. A register is kept of the behaviour
of the different boys, and of as much of their previous history as can
be discovered. Extracts from this are annually published, and they
contain a number of facts of the most interesting kind; all proving
the practical utility of the plan. Some of these are selected from the
last report of the managers(a).
(a) W. H. O.—This boy's history exhibits one of the most striking instances of juvenile
depravity that we have on the records of this institution. He, at the early age of nine
years, commenced his career of stealing, and with the assistance of some, more hardened
and older in crime than himself, he continued it for three years, with the most undeviating
success. Of his short life, two and a half years in three separate terms, have been served
in the penitentiary, besides having been several times in bridewell. The associations he
formed in those schools of vice, instead of reclaiming him, served only to strengthen his
vicious propensities, and, at his discharge from them, he recommenced his depredatory acts
with renewed skill; in short, with him stealing seemed to be an instinctive principle. Thus
he continued until the establishment of this institution. He fortunately became one of its first
inmates. Upon his introduction he evinced a settled determination to escape (in which he
succeeded three several times). The most rigid treatment was for a long time successfully
applied. At length he began gradually to yield to the restraints, and submit to the
regulations required of him; from January to December 1826, he so far improved that we
considered him one of the most amiable boys in the house; the person who contracted for
THE CODE OF REFORM AND PRISON DISCIPLINE.
347
It will be observed, that, contrary to the rules laid down for the
penitentiary, personal castigation is permitted in the school. This
exception was introduced because the infliction of that punishment in
childhood, is not attended with the degradation which characterises it
when applied to adults; because it is permitted to teachers, with re-
spect to their scholars; to masters, as respects apprentices; and
because the rules laid down for regulating the punishment are such as
will effectually prevent its abuse. Yet, if experience should prove, as
I think it will, that, even in these cases, it may be dispensed with, it
his services, said, that his attention to his work was such as to afford him much plea-
sure; that he was entirely obedient, agreeable, and active in the discharge of his duties.
Conceiving that the object of the institution, in the effect of his reformation, was completed,
and that a better state of mind could not be effected in William, he was indentured to a
highly respectable mechanic, living in Connecticut. Some time previous to his indenture,
he was asked whether he would ever redarken his character by the commission of crime, if
selected to be bound out; his reply was, that he was then influenced by the wicked one,
but that he now felt his mind to be in a different channel; and if a modest and humble de-
portment for several months, together with a knowledge of his frequently practising devo-
tional exercise, are proper criterions by which to judge, we feel perfectly safe in saying that
William was truly an altered boy. Since his indenture, a very favourable report has been
received from him.
S. T.-Aged sixteen years, born in Patterson, N. J.; he lost his father and mother when
quite young, after which he was left to the care of guardians, who neglected him. He in a short
time acquired a degree of celebrity among his companions, by his skill in stealing old rope,
iron, copper, &c. from around the docks. His career, however, was made short by the
superintending care of the city authority, by whom he was committed to the alms-house, as
a vagrant. He twice escaped from that institution, and when retaken the second time, he
was sent here. Soon after his commitment it became evident that the discipline of the
house was all that was requisite to make him obedient. After conducting himself to the
entire satisfaction of the superintendent, he was indented to a farmer in the country.
Since his indenture, we have been informed by the gentleman with whom he lives, that "he
is industrious, attentive and kind; and such is the state of his mind, as relates to religion
and morality, that he will reprove his men for using profane language, in a prompt, though
modest and becoming manner, often referring to the precepts he received from his recent
friends."
D. B. L.-Aged fifteen years, born in New York, committed from the police, on suspi-
cion of having stolen a shawl. He was brought up in the vicinity of Bancker street, and
for some months played the tambourine in those receptacles of vice and misery, the dancing-
houses of Corlears Hook. He acknowledges having stolen some few articles, but denies
stealing the article for which he was sent here. From the time he was committed until his
discharge he conducted in an entirely satisfactory manner. In October he was indentured
to a respectable gentleman residing about sixty miles north of this city.
L. S.-Aged about sixteen years, born in Ireland; his parents emigrated to this country
about eight years ago. His father has since died. His education was entirely neglected
by his parents, and the choice of his companions left exclusively to himself. He has work-
ed at several mechanical branches of business, to none of which his restless disposition
could attach itself. He was committed to the Refuge in March, 1825, from the police
office, for stealing a copper kettle, for which he had been confined in Bridewell eight days,
where he had been four times before. The character of a notorious thief cannot with
justice be attached to this boy, though he had been a habitual pilferer for several years.
Upon his entry into the house, he gave no evidence of a disposition palpably wicked, yet
he was a source of much trouble to the superintendent; in mischief he was almost invaribly
first; to the rules and regulations of the house he was perfectly indifferent, and in one instance
he absconded. After a few days he was returned, severely punished, and put in irons for
forty-three days, when his irons were taken off. In December his improvement was so
348
INTRODUCTORY REPORT TO
ought to be abolished. But, while this power is granted by law to the
master over the scholar or apprentice, it would not be prudent to deny
it to the warden, who acts in this capacity towards the children under
his care.
There is also another difference that will be remarked, in comparing
this institution with the penitentiary: here public worship is directed,
while, in the penitentiary, no provision is made for its performance.
The advantage to be derived from an habitual attendance on this duty
is so great, that it ought not lightly to be given up; but, after the best
reflection I could give to the subject, I determined that it might safely
be allowed in the school, but could not, without danger, be permitted
in the penitentiary. The discipline necessary to preserve order in the
work-shops, and during the hours of instruction, will be sufficient for
the same purpose, in the chapel, during divine service. In the habit
of seeing and conversing with each other during the week, the asso-
ciation in the church, on Sunday, will not be made, by the children,
the means of communicating plans for escape, or other unlawful com-
bination. But, in a penitentiary, instituted for solitary confinement,
great that he was promoted to the situation of night watch, and day guard, the duties of
which he faithfully performed until July 1826, when he requested to be sent to sea; his request
was complied with, and he was indentured to a highly respectable ship owner of this city.
After an absence of three months, he returned to the Refuge on a visit, stated that he was
perfectly contented with his situation, and that he had often reflected while at sea, that, in-
stead of enjoying the blessings of liberty, he might have now been in the state prison, had it
not been for the establishment of a House of Refuge.
D. S.-Aged fifteen years, born in New York; his father died while he was yet an infant;
his mother since married an oysterman, now living in the vicinity of Bancker street. David
has lived with three different persons, who kept oyster-cellars; after leaving them, he re-
turned to his mother. He commenced his thefts by stealing wood from about the docks;
has also been in the habit of stealing old junk, copper, &c. He has been three several
times committed to bridewell, the last time for stealing a copper kettle, in company with
the foregoing boy; it was for this offence that he was committed to the Refuge. He was
at first very refractory, constantly plotting how to escape, and endeavouring to persuade others
to accompany him. He was for some months treated with much strictness; from June
1825 to February 1826, his conduct was entirely satisfactory; at this time an opportunity
offering to give him an advantageous situation, it was deemed incompatible with the object
of the institution to detain him longer. He was consequently indented to a gentleman
residing in the western part of this state, who, in a letter directed to his mother, two months
after the date of his indenture, says he has much reason to be pleased with David's conduct.
J. D. S.-Aged eleven and a half years, born in New York. This child, notwithstanding
his extreme youth, has committed many errors. He was first led to the perpetration of crime
by the persuasion of one older than himself, in whose company he stole many articles; he
was once in bridewell for stealing, and was frequently punished by his parents, but to no
effect. He was committed here, at the solicitation of his father, in April 1825. He con-
ducted himself with uniform propriety until October 1826, when he was returned to his
parents for the purpose of indenturing to a gentleman who was instrumental in his reforma-
tion, and who was well acquainted with his disposition. Here is another instance in which the
preservation of a child from ruin may be attributed to the establishment of a House of Refuge.
Had this boy's thieving practices been permitted to degenerate into a habit, they doubtless
would have procured for him a residence in our state prison or penitentiary, where the ob-
ject is punishment, and not reformation; he must have been thrown in the company of old
and hardened offenders, the contaminating influence of whose conversation would eventu-
ally have banished every virtuous and generous sentiment from his tender bosom. What
reflecting mind but must admit the utility of such an institution, and what generous soul but
would contribute to its support?
THE CODE OF REFORM AND PRISON DISCIPLINE.
349
the meeting of all the convicts on Sunday would be entirely inconsist-
ent with the first principles of the plan; order could not be preserved
without recourse being had to corporal chastisement; the convicts
would anticipate the return of their periodical re-union, not to listen
to the truths of religion, but to enjoy the society of which they had
been deprived; the utmost vigilance could not prevent communication
by whispers or signs; they would become acquainted with each other's
faces, and be ready to renew, after discharge, those associations, which
it is one object of the plan to prevent; and it has been asserted, and
I believe with truth, that most of the combinations for insurrection
and escape have been formed in the chapel.
In all these institutions, whether for restraint, punishment or educa-
tion, so much must depend on the integrity, attention and ability, of the
warden, that not only are the greatest care and judgment necessary in
selecting him, but the most watchful superintendence after he is chosen.
It may be stated as a general rule, to which, unhappily, there are few
exceptions, that, if neglect in the performance of official duties incurs
no loss of emolument, they will be neglected, unless the state of public
opinion is such as to make it an equivalent sanction; this last is a pow-
erful agent; but it cannot always be depended upon; and it operates
least upon those that are most in want of a supervising power. A
sensibility to public opinion is connected, for the most part, with a
moral sense that would, of itself, enforce a performance of the duty;
and a lax morality is seldom attended with any great reverence for the
opinions of others. But, in framing laws, we cannot count on the con-
stant operation of this high sense of duty or regard to public approba-
tion. They must be made for men as they are; and unfortunately the
disposition to gain as much as possible, with as little trouble as possible,
is that which we shall find most general, and which, therefore, we must
counteract, or direct to our purpose, if we expect our institutions to be
useful and permanent. A superintending power, therefore, has, in
most systems of law, been provided to secure the execution of official
duty; this is easily done, and were the remedy an effectual one, nothing
could be more simple than this branch of legislation; but what can
assure us that the supervisors will do their duty?
Custodes ipsos, quis custodiet?
In our legislation, we way create a system of successive responsi-
bilities and inspections; but a foundation must be laid for the last. We
may place the weight on the elephant, and support him by the tor-
toise, but here our theory, with that of the Indian cosmogonist, ends.
Sound philosophy alone can, in both cases, direct us to the great
principles, which effect the different ends, without this cumbrous and
useless machinery. Individual interest draws all to a central point; a
desire to promote the public good, enforced by the fear of censure and
the hope of applause, gives an impetus in a different direction; and
these powers combined, will restrain aberrations from the circle of offi-
cial duty just as the order of the heavenly bodies is preserved by the
divergent operation of mutual attraction and the projectile force.
Self-interest, then, must be so combined with the public good, as to
make them inseparable; and public inspection must be secured, to keep
this great spring of human action in its proper direction. This has been
endeavoured in the plan of administration for the several houses of con-
finement provided for by this system.
350
INTRODUCTORY REPORT TO
The whole are placed under the superintending care of the same board,
because, being parts of the same system, its general principles could
only be enforced by a common head. The number of the institutions
required an attention that a single person could not well perform; a
board of inspection, therefore, was created, and, considering the nature
of the duties, the number of five was fixed on as that which would best
unite the advantages of deliberation with the requisite despatch of busi-
ness; and a distribution of the duties into classes, that some might be
performed by one member, making two necessary for others, and a
majority for those which were most important, was considered as a
convenient and safe arrangement. This board, in addition to its gene-
ral superintending power, has the direct management of all the pecu-
niary concerns of the several prisons, but under regulations, which, it
is thought, must prevent the possibility of any corrupt appropriation or
negligent dilapidation of the funds. Among other precautions, is one
that ought, I think, to be adopted in all cases of trust, whether arising
from office, or contract, or testamentary disposition; the deposite of all
moneys held for another, or for the public or any institution, in a safe
public bank, in the name of the trust, or of the person in his quality as
officer or agent, to be drawn out only by checks, expressing the pur-
pose to which the money is to be applied, and making it a criminal
breach of trust if the deposite is not made, or if the funds are drawn
for any other purpose than that of the person or institution for whose
use it was received. The advantages of such an arrangement in com-
mercial agencies, and private and public trusts, need not be descanted
on here it is intended, in connexion with other provisions, prohibiting
any kind of concern in purchases or sales made for the prisons, any
profit or convenience from the employment of the prisoners, to take
away all temptation of making the office a pecuniary speculation, and
what is of as much consequence, perhaps, to prevent its being thought
one.
The board of inspection must be permanent; its duties are arduous;
they require experience as well as diligence; the undivided attention
of the members must be given to the subject; the close and unremitted
labours required by the important business entrusted to them, cannot
be expected to be gratuitously given. Few men, in our state of society,
can afford to divert the time required for this purpose from their pri-
vate affairs; and those who can afford it, are not always the best fitted
for the task. They must, therefore, be paid, and so liberally paid, as
to command the talent and integrity required. Philanthropy, public
spirit, humanity or religion, may inspire individuals to volunteer ser-
vices; but it is a natural tendency of zeal gradually to cool, when
the service which excited it is one requiring patient attention, a daily
intercourse with the most degraded of our species, and a close attention
to dull detail, more especially when it requires no exertion of those
talents that command public applause: besides this, if the service is
unpaid, its negligent performance rarely incurs the penalty of public
censure, which never falls very heavy on those who have gratuitously
given any part of their time or attention to the business; whereas, the
salary being an equivalent for the service, legal punishment, as well as
loss of reputation, will generally attend neglect. The particular powers
given to the board of inspectors, need not be here detailed; they are,
it is thought, clearly designated in the text. As theirs is chiefly a su-
THE CODE OF REFORM AND PRISON DISCIPLINE.
351
pervising power, and not so direct an agency upon the prisoners as that
of the other officers, it was not deemed necessary to give them any
interest in the labour of the convicts; the number, too, of their mem-
bers would have rendered this extremely onerous to the institution.
But with the warden it was different; to him it was deemed necessary
to apply those principles I have endeavoured to establish, which make.
the interest of the officer and of the public to coincide. The interest of
the public is, first, that all the regulations in the code, for punishment
and reformation, should be strictly observed; secondly, that as much
as possible of the expense of the institution should be paid by the labour
of the convicts. To give the warden an interest in the first branch,
he has a premium on the decrease of reconvictions, the best mode of
testing the efficiency of the system. To stimulate him in promoting
the industry and skill of the convicts, he has a per centage on the gross
amount of their labour; while the superintendence of the inspectors,
their periodical examination of the prisoners, and of the other officers,
the observation of the chaplain and physician, and of the official visiters,
will effectually prevent his urging that labour by any other means, or
in any greater degree, than is prescribed by the code. It is also a great
object, that by preserving the health of the prisoners, the punishment
should not be carried further than is directed by the sentence; for this
purpose, cleanliness, wholesome food, exercise and proper relaxation.
from labour, are prescribed. To enforce their execution, the proper
system of inspection is provided; and to combine private interest and
the love of distinction in the performance of this duty, honorary and
useful premiums are given for different grades of decrease in the usual
mortality of the prisons. These rewards are extended to all the officers
whose agency can at all contribute to the end.
It may be necessary, before the conclusion of this report, to give
some idea of the number of officers, and the duties of those which have
not yet been mentioned.
The plan, as has been seen, comprehends,
A House of Detention, with two departments;
A Penitentiary;
A School of Reform
;
A House of Refuge and Industry, with two departments.
All of these are under the general superintendence of five inspectors;
one warden and one matron will be required for each institution. One
chaplain and one physician will be sufficient for the four; a clerk for
the Penitentiary; one teacher for the School for Reform and another for
the Penitentiary. In the other institutions, the detention is not long
enough to require a regular establishment for education, and one of the
inmates will always be found competent for this purpose; so that, in-
dependent of the underkeepers, the number of which will depend, in
some measure, on that of the prisoners, the four institutions will require
thirteen officers. The manner in which the prisoners are proposed to
be confined, will preclude the necessity of a military guard; and unless
the number shall multiply much beyond our hopes and reasonable ex-
pectations, one underkeeper for the House of Detention, one for the
School of Reform, two for the House of Industry, and six for the Peni-
tentiary, ten only in all, will be required. In this calculation, neither
the inspectors nor their agent are included.
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INTRODUCTORY REPORT TO
A regulation of much importance in the code may need some ex-
planation, which has not been given in its place. Solitary confinement,
although accompanied by the permission to labour in an uncovered
court, may, if the labour be sedentary, be injurious to the health. To
counteract this effect, a machine is directed to be made that will require
strong muscular power to put in motion; and at this, each of the male
prisoners is directed to work, but only for one hour in each day. This
is made compulsory; but as the only penalty is solitary confinement to
the cell, and as it is considered and intended only as a preservation to
the health, this compulsion is not at war with the principles before laid
down on that subject. The prisoners are to be brought to the machine
separately, and it must be so contrived as not to permit them to see or
hear each other while at work. Its effects will be not only to preserve
general health, but to fortify the muscular powers, and fit the convict
on his discharge for any species of laborious employment.
The tread-mill, although a favourite engine of punishment in many
institutions, finds no place in this, for the following reasons: it cannot
be employed without breaking in upon the system of solitary confine-
ment, which is the basis of the system; its injurious effects upon the
health are supported by strong testimony(a), and although there is a
contrariety of evidence on the subject(b), yet it may be fairly inferred
from the whole, that it does not fortify the constitution and prepare
the convict for any of the ordinary pursuits of laborious life, the prin-
cipal muscular action being in the legs only. It teaches the convict
nothing that can be useful to him on his discharge. It is not a profita-
ble employment of human power. If it have any effect on the morals,
it must be a bad one, from the associations inseparable from it, and from
the degradation which is considered to be attached to it. As a punish-
ment it must be unequal; to give it the velocity necessary to punish
one of a robust constitution, would make it a torture to a weaker
convict.
The Code of Reform and Prison Discipline, and the reasoning in
support of its provisions, are now before the legislature; their wisdom
will determine on the propriety of its adoption. Many parts of the
plan have at different times been proposed, and some of them have been
partially executed, but they have never before been consolidated and
presented as component parts of a whole system; a characteristic which
it is thought constitutes its chief value for it must be apparent, from
the nature of the subject, that, without a continuity of operation, as
well as uniformity of principle in the plan, no infliction of punishment
or discipline for reformation can have any great effect. In all legisla-
tion we must first form a clear idea of that which we wish to accomplish,
and then determine on the best means of effecting it. These being
well understood, they must be explicitly enounced, not only for our
own guidance in forming the plan, but for that of our successors in
correcting, of the judges in expounding, and of our constituents in
obeying it. In that which I offer, its great object has been constantly
kept in view, and has been repeated perhaps oftener than was necessary;
and the means proposed to effect it are such only as have been recom-
mended either by experience or the maturest reflection. But, as this
(a) Sir John Cox Hippeslie on the tread-mill.
(b) Sixth Report of the Society for the Improvement of Prison Discipline, appendix.
THE CODE OF REFORM AND PRISON DISCIPLINE.
353
:
object is the prevention of crime, it is clear that this would be but im-
perfectly effected by any discipline applied after conviction only. Con-
viction supposes the prior existence of crime, and the discipline that
corrects it is punishment; but punishment is only one of the means of
attaining the end of preventing crimes to avoid their commission,
therefore, we must go one step further back; we must prevent con-
taminating association before trial, more carefully than we would after
it; we must never confound innocence with unconvicted guilt, by im-
posing any unnecessary restraint upon either. But even accusation is
most commonly founded on the evident commission of an offence, al-
though trial is necessary to designate the offenders. We must begin,
then, at an earlier stage in our efforts to prevent it; we must relieve
that extreme want which is sometimes the cause, and oftener the pre-
tence for crime; and we must find employment for the idleness which
generally produces it. And when this is done, our work is not yet.
complete; religious, moral and scientific instruction must be not only
provided but enforced, in order to stamp on the minds of the people
that character, that public feeling, and those manners, without which
laws are but vain restraints.
The recapitulation of the several institutions embraced by the Code
of Reform and Prison Discipline, has been made to show their close
connexion, and that each part is so necessary to carry into effect the
great objects of the system, that an omission of any one would, in a great
measure, defeat the good effect that might be expected from the others.
If we mean to guard the community from the inroads of crime, every
avenue must be defended. A besieged city, fortified on one side, leav-
ing the others open to hostile attacks, would be a just image of a coun-
try in which laws are made to eradicate offences by punishments only,
while they invite them by neglect of education, by the toleration of
mendicity, idleness, vagrancy, and the corrupting associations of the
accused before trial, as well as after conviction. Yet such is the la-
mentable state of criminal jurisprudence, that all nations are more or
less in this state. Here great severity is used to punish offences, but
no means are provided to prevent them: there mild punishments and
a reformatory discipline are applied after judgment; but severe impri-
sonment and contaminating associations are indiscriminately inflicted
on the innocent and on the guilty before trial. Between some states
the contest seems which shall raise the greatest revenue from the labour
of the convicts in others the object is to degrade and make them feel
their misery. No where has a system been established consisting of
a connected series of institutions founded on the same principle of
uniformity, directed to the same end; no where is criminal jurispru-
dence treated as a science; what goes by that name, consists of a col-
lection of dissimilar, unconnected, sometimes conflicting expedients to
punish different offences as they happen to prevail; of experiments di-
rected by no principle to try the effect of different penalties; of perma-
nent laws to repress temporary evils; of discretionary power, sometimes
with the blindest confidence vested in the judge, and at others with the
most criminal negligence given to an officer of executive justice. All
these and other incongruities would cease, were the lawgiver to form
correct principles; enounce them for his own guidance and that of his
successors; and, with them constantly before his eyes, arrange his sys-
tem of criminal jurisprudence into its natural divisions, by providing
for the poor, employing the idle, educating the ignorant, defining of
2 U
354
INTRODUCTORY REPORT, &C.
fences and designating their correspondent punishment, regulating the
mode of procedure for preventing crimes and prosecuting offenders, and
giving precise rules for the government and discipline of prisons.
With such a system it may reasonably be expected, not that offences
will be eradicated, but that their recurrence will be much less frequent,
and that the rare spectacle will be witnessed of a retrograde movement
in vice and crime. But the desultory attempts which have been made,
and are daily making, to carry some of its detached parts into execu-
tion, do but retard the progress and endanger the success of reform;
they are troublesome, they are expensive; the false reliance that is placed
upon them by their advocates, excites high expectations, which must
be disappointed, because a disease pervading the system cannot be cured
by topical remedies; and the disappointment produces despair of final
success, an abandonment of the plan of reformation, and an inclination
to return to the old sanguinary system.
The code now submitted completes the System of Penal Law, which
is respectfully offered for consideration.
The task was undertaken with an unfeigned distrust of my own
powers, which nothing could have conquered but the conviction that
a simple enumeration and development of the principles on which the
system is founded, would force a conviction of their truth.
It has been prosecuted with laborious and unremitted application for
several years, with a respectful attention to the opinions of others, and
a close observation of practical results.
Its conclusion was attended with the gratifying consciousness of
having taken every precaution to guard against the pride of opinion,
and neglected no means that could be suggested by the deepest sense.
of its importance, and a religious desire that it might advance private
happiness, by establishing the true principles of public justice.
It is now respectfully offered for consideration, in the hope that
after legislative wisdom shall have supplied the omissions, and corrected
the errors of the work, it may be made the basis of a system, by which
instruction may be promoted, idleness and vice repressed, crimes di-
minished, and the sum of human happiness increased.
EDWARD LIVINGSTON.
A SYSTEM OF PENAL LAW.
INTRODUCTORY TITLE.
CHAPTER I.
Preamble.
No act of legislation can be, or ought to be immutable. Changes are
required by the alteration of circumstances; amendments, by the im-
perfection of all human institutions; but laws ought never to be changed
without great deliberation, and a due consideration as well of the
reasons on which they were founded, as of the circumstances under
which they were enacted. It is therefore proper, in the formation of
new laws, to state clearly the motives for making them, and the princi-
ples by which the framers were governed in their enactment. With-
out a knowledge of these, future legislatures cannot perform the task
of amendment, and there can be neither consistency in legislation, nor
uniformity in the interpretation of laws.
For these reasons the general assembly of the state of Louisiana de-
clare, that their objects in establishing the following code, are-
To remove doubts relative to the authority of any parts of the penal
law of the different nations by which this state, before its independence,
was governed.
To embody into one law and to arrange into system such of the
various prohibitions enacted by different statutes as are proper to be re-
tained in the penal code.
To include in the class of offences, acts injurious to the state and its
inhabitants, which are not now forbidden by law.
To abrogate the reference, which now exits, to a foreign law for the
definition of offences and the mode of prosecuting them.
To organize a connected system for the prevention as well as for the
prosecution and punishment of offences.
To collect into written codes, and to express in plain language, all the
rules which it may be necessary to establish, for the protection of the
government of the country, and the person, property, condition, and
reputation of individuals; the penalties and punishments attached to a
breach of those rules; the legal means of preventing offences, and the
forms of prosecuting them when committed; the rules of evidence, by
which the truth of accusations are to be tested; and the duties of exe-
cutive and judicial officers, jurors and individuals, in preventing, pro-
secuting, and punishing offences: to the end that no one need be igno-
rant of any branch of criminal jurisprudence, which it concerns all to
know.
358
SYSTEM OF PENAL LAW.
And to change the present penal laws, in all those points in which
they contravene the following principles, which the general assembly
consider as fundamental truths, and which they have made the basis of
their legislation on this subject, to wit:
Vengeance is unknown to the law. The only object of punishment
is to prevent the commission of offences: it should be calculated to
operate.
First, on the delinquent, so as by seclusion to deprive him of the pre-
sent means, and by habits of industry and temperance, of any future de-
sire, to repeat the offence.
Secondly, on the rest of the community, so as to deter them by the
example, from a like contravention of the laws. No punishments,
greater than are necessary to effect these ends, ought to be inflicted.
No acts or omissions should be declared to be offences, but such
as are injurious to the state, to societies permitted by the laws, or to in-
dividuals.
But penal laws should not be multiplied without evident necessity;
therefore acts, although injurious to individuals or societies, should not
be made liable to public prosecution, when they may be sufficiently
repressed by private suit.
From the imperfection of all human institutions, and the inevitable
errors of those who manage them, it sometimes happens, that the inno-
cent are condemned to suffer the punishment due to the guilty. Pun-
ishments should, therefore, be of such a nature that they may be re-
mitted, and as far as possible compensated, in cases where the injus-
tice of the sentence becomes apparent.
Where guilt is ascertained, the punishment should be speedily in-
flicted.
Penal laws should be written in plain language, clearly and unequi-
vocally expressed, that they may neither be misunderstood nor pervert-
ed; they should be so concise, as to be remembered with ease; and all
technical phrases, or words they contain, should be clearly defined.
They should be promulgated in such a manner as to force a knowledge
of their provisions upon the people; to this end, they should not only
be published, but taught in the schools; and publicly read on stated
occasions.
The law should never command more than it can enforce. Therefore,
whenever, from public opinion, or any other cause, a penal law cannot
be carried into execution, it should be repealed.
The accused, in all cases, should be entitled to a public trial, conducted
by known rules, before impartial judges and an unbiassed jury; to
a copy of the act of accusation against him; to the delay necessary to
prepare for his trial; to process to enforce the attendance of his own
witnesses; and to an opportunity of seeing, hearing, and examining those
who are produced against him; to the assistance of counsel for his de-
fence; to free communication with such counsel, if in confinement, and
to be bailed in all cases, except those particularly specified by law. No.
presumption of guilt, however violent, can justify the infliction of any
punishment before conviction, or of any bodily restraint greater than
is necessary to prevent escape; and the nature and extent of this re-
straint should be determined by law.
Perfect liberty should be secured of hearing and publishing a true
account of the proceedings of criminal courts, limited only by such re-
SYSTEM OF PENAL LAW.
359
strictions as morality and decency require; and no restraint whatsoever
should be imposed on the free discussion of the official conduct of the
judges and other ministers of justice, in this branch of government.
Such a system of procedure, in criminal cases, should be established
as to be understood without long study; it should neither suffer the
guilty to escape by formal objections, nor involve the innocent in diffi-
culties, by errors in pleading.
For this purpose, amendments should be permitted in all cases,
where neither the accused nor the public prosecutor can be surprised.
Those penal laws counteract their own effect, which, through a mis-
taken lenity, give greater comforts to a convict than those which he
would probably have enjoyed, while at liberty.
The power of pardoning should be only exercised in cases of innocence
discovered, or of certain and unequivocal reformation.
Provision should be made for preventing the execution of intended
offences, whenever the design to commit them is sufficiently apparent.
The remote means of preventing offences, do not form the subject
of penal laws. The general assembly will provide them in their pro-
per place. They are the diffusion of knowledge, by the means of
public education, and the promotion of industry, and consequently of
ease and happiness among the people.
Religion is a source of happiness here, and the foundation of our
hopes of it hereafter; but its observance can never, without the worst
of oppression, form the subject of a penal code. All modes of belief,
and all forms of worship, are equal in the eye of the law; when they
interfere with no private or public rights, all are entitled to equal pro-
tection in their exercise.
Whatever may be the majority of the professors of one religion or
sect in the state, it is a persecution to force any one to conform to any
ceremonies, or to observe any festival or day, appropriated to worship
by the members of a particular religious persuasion this does not ex-
clude a general law, establishing civil festivals or periodical cessations
from labour for civil purposes unconnected with religious worship, or
the appointment of particular days on which citizens of all persuasions
should join, each according to the rites of his own religion, in render-
ing thanks to God for any signal blessing, or imploring his assistance
in any public calamity.
The innocent should never be made to participate in the punishment
inflicted on the guilty; therefore, no such effects should follow convic-
tion as to prevent the heir from claiming an inheritance through or from
the person convicted. Still less should the feelings of nature be con-
verted into instruments of torture, by denouncing punishment against
the children, to secure the good conduct of the parent.
Laws intended to suppress a temporary evil should be limited to the
probable time of its duration, or carefully repealed after the reason for
enacting them has ceased.
360
SYSTEM OF PENAL LAW.
CHAPTER II.
Plan and division of the system of penal law.
Art. 1. This system comprises four distinct codes, and a Book of
Definitions. The first, called the CODE OF CRIMES AND PUNISHMENTS,
is divided into two books, containing :-General Principles; and the
description of all acts or omissions that are declared to be offences;
with the punishment assigned to each.
Art. 2. The second is called the CODE OF CRIMINAL PROCEDURE.
It is divided into two books. It contains the means provided for pre-
venting offences that are apprehended, and for repressing those that
exist; and it directs the mode of proceeding for bringing offenders to
justice.
Art. 3. The third is the whole law of evidence, applicable as well
to civil as to penal cases, and is called the CODE OF EVIDEnce.
Art. 4. The fourth contains a system of prison discipline, in all the
stages in which imprisonment is used, either as the means of detention
or punishment. It is designated as the CODE OF REFORM AND PRISON
DISCIPLINE.
Art. 5. The concluding division of the system is a BOOK OF DEFI-
NITIONS, which defines all the technical words or phrases that are used
in the several codes.
CHAPTER III.
Introductory notice.
Art. 6. Whenever the office, trust, state, or relation, of tutor, ward,
administrator, executor, ancestor, heir, parent, child, ascendant, de-
scendant, minor, infant, master, or servant, and the relative pronouns,
he or they, as referring to them, are used, they are intended to mean
as well females as males, standing in those relations, or exercising the
same offices, trusts, or duties, unless the contrary be expressed.
Art. 7. The general terms-whoever; any person; any one; and
the relative pronouns he or they, when they refer to them, are in-
tended to include females as well as males, unless there is some express-
ion to the contrary. The word man is used in this system, not as a
generical term, but to express a person of the male sex, of whatever
age.
The term woman includes females of every age.
Art. 8. Whenever any thing is forbidden or directed, by using the
general terms-any one; one; any person; whoever; or the relative
pronoun-he; referring to any such general term, the same prohibition
or direction (if the contrary be not expressed) is extended to more
persons than one, doing or omitting the same act.
Art. 9. Whenever any thing is directed or forbidden with respect
to one object or thing, the same direction or prohibition extends to
SYSTEM OF PENAL LAW.
361
more than one of the same objects or things, and a direction or prohi-
bition as to more objects than one, includes the same prohibition as to
a single one of the same objects.
1
Art. 10. All words printed in small capitals, are defined and ex-
plained in the Book of Definitions; and in all other parts of the system
are used in no other sense than that given to them by such definition
or explanation.
Art. 11. Every word or phrase, other than those so printed, is to be
taken and construed in the sense in which it is used in common par-
lance, taken in connexion with the context, and the subject relative to
which it is employed.
Art. 12. It is not intended that each article should contain in itself
a complete expression of legislative will, on the subject of which it
treats, independent of the other articles of the same section; the whole
are to be considered together; to avoid repetition, a provision in one
article sometimes relates to something expressed in another; an exam-
ple of which is found in the article immediately preceding this, where
the words "so printed" relate to printing in "small capitals," provided
for in the section preceding it.
Art. 13. Whenever the degrees of relationship between persons are
referred to, the degrees by AFFINITY, as well as CONSANGUINITY, are
intended, unless the contrary be expressed.
Art. 14. Whenever any thing is forbidden or commanded for the
protection of property or interest, and the general term "person" or
any other general term, is used, to designate the party whose property
or interest it is intended to protect by such prohibition or command;
in all such cases, the state, and all public and private bodies corporate
are included.
2 V
A CODE OF CRIMES AND PUNISHMENTS.
INTRODUCTORY TITLE.
THIS code is divided into two books, and each book into titles, chap-
ters, sections and articles, numbered throughout the whole code.
The first book contains general provisions, applicable to prosecutions
and trials; to the persons who are amenable to the penal laws of the
state; to the circumstances under which all acts that would other-
wise be offences may be justified or excused; to the repetition of offences;
and to the case of different persons participating in the same offence,
as principals, accomplices and accessaries.
The second book defines offences, and designates their punishments.
BOOK I.
CONTAINING GENERAL PROVISIONS.
CHAPTER I.
Containing general provisions relative to the operation of the pe-
nal laws of this state.
Art. 1. No act or omission done or made before the promulgation
of the law which forbids it, can be punished as an OFFENCE.
Art. 2. If an act or omission be created an offence by one law, and
the penalty be altered by another, no breach of the first law, commit-
ted before the promulgation of the second, can be punished by inflict-
ing the penalty of the latter.
Art. 3. After a PENAL LAW is repealed, no person can be arrested,
imprisoned, tried or condemned, for a breach of it while it was in
force, unless the repealing law has an express provision to that effect.
Art. 4. The distinction between a favourable and unfavourable
construction of laws is abolished. All penal laws whatever are to be
construed according to the plain import of their words, taken in their
usual sense, in connexion with the context, and with reference to the
matter of which they treat.
Art. 5. When a second penal law shall direct a NEW PENALTY,
the penalty of the first law shall be deemed to be abolished, unless the
contrary be expressed.
Art. 6. A law which simply commands or forbids an act to be done,
but which contains no denunciation of a penalty, can have none but
civil effects; the act or omission which is forbidden cannot be punished
as an offence.
Art. 7. The legislature alone has the right to declare what shall
constitute an offence; therefore it is forbidden to punish any acts or
omissions, not expressly prohibited, under pretence that they offend
against the laws of nature, of religion, morality or any other rule, ex-
cept written law.
Art. 8. Courts are expressly prohibited from punishing any acts
or omissions which are not forbidden by the plain import of the words
of the law, under the pretence that they are within its spirit. It is
better that acts of an evil tendency should for a time be done with im-
punity, than that courts should assume legislative powers; which
assumption is itself an act more injurious than any it may purport to
CODE OF CRIMES AND PUNISHMENTS.
367
repress. There are, therefore, no constructive offences. The legisla-
ture, when the necessity appears, will bring such acts as ought to be
punished within the letter of the law.
Art. 9. If, however, any penal law shall be so inaccurately drawn,
as to bring within its penalty an act that it could not, in the opinion of
the court, have been the intention of the legislature so to punish; the
accused must be acquitted, but the court shall report such case to the
legislature at their next session, or within eight days if they be in sess-
ion.
Art. 10. When a competent tribunal, judging in the last resort,
hath rendered a final judgment, acquitting or condemning the accused,
on the merits of the charge against them, he can never be again prose-
cuted for the same offence.
Art. 11. An accusation being an affirmation of guilt, it must be
proved to the satisfaction of those whose province it is to decide.
CHAPTER II
General provisions relative to prosecutions and trials.
Art. 12. No person accused of any offence shall be compelled by
violence or menace, to answer any interrogations relative to his inno-
cence or guilt; nor shall his confession, unless it be given freely,
without violence, menace, or promise of indemnity or favour, be pro-
duced in evidence against him.
Art. 13. No person shall be arrested to answer for any offence,
but in the manner and on the evidence specially set forth in the Codes
of Procedure and Evidence.
Art. 14. No SEARCH WARRANT shall issue in any case but in those
provided for, and in the manner directed, in the Code of Procedure.
Art. 15. The accused, in every stage of the prosecution, is entitled
to have advice of such counsellor at law, or other person, as may be
employed by him for his defence. If he declare himself unable to pro-
cure counsel, the court shall assign him an advocate in the manner di-
rected by the said code.
Art. 16. No trial for any CRIME shall be had, but in the presence of
the accused. No examination of witnesses shall be used on such trial,
but such as is taken in the joint presence of the court, the jury, the
public prosecutor and the accused; all of whom shall have leave to
question the witness. Those cases in which testimony is allowed to
be taken by commission, and those which are specially provided for in
the Code of Procedure, are excepted from the provisions of this ar-
ticle.
Art. 17. All trials for offences shall be held in public. All per-
sons under no legal disability or restraint, have a right to be present at
such trials; provided, however, that the court may, on the prayer of
the prosecutor or the accused, direct witnesses to withdraw until they
are called for examination; and may also, in the manner directed by
the provisions of the Code of Procedure, remove such persons as shall
obstruct the administration of justice.
368
CODE OF CRIMES AND PUNISHMENTS.
Art. 18. The preceding article is subject to the restriction required
by decency and morals, which are particularly provided for in the
Code of Procedure.
Art. 19. All final judgments in trials for offences, with the reasons.
on which they are founded, shall be distinctly pronounced in open
court, in the presence of the accused (if he be in custody), and they
shall be entered at large on the minutes of the court. And in like
manner all other judgments, orders or decisions, shall be pronounced
and entered on the minutes, whenever either the public prosecutor or
the accused shall require the same.
Art. 20. After a cause, whether civil or criminal, is decided, it
shall be lawful for any one, by printing and in writing, as well as by
speech, to discuss the reasons of any judgment, order or decree, given
in the course of any such suit or prosecution, and to call in question
the legality or propriety of the same.
Art. 21. The process to which the accused is entitled by the con-
stitution, to compel the attendance of his witnesses, shall be granted
for witnesses who may be in any part of the state, and the sheriff of
any parish to whom the same may be directed, shall serve and return
such process, and such witnesses shall be paid by the state, whenever
the accused shall be acquitted, and whenever it shall appear to the
court that the accused, if convicted, is unable to pay them.
Art. 22. All witnesses summoned to attend the trial of any offence,
shall be protected from arrest in any civil suit, and in any penal suit
for a misdemeanor, other than a breach of the peace, while attending
on the court, and for a reasonable time, while going to or returning
therefrom; unless it shall appear that the witness was summoned by
collusion merely to protect him from arrest. And in case of any ar-
rest, contrary to this article, any judge of any court of this state,
either of criminal or civil jurisdiction, except justices of the peace,
may grant relief by discharging the person arrested, first giving notice
to the person causing the arrest, or to his agent.
Art. 23. No person after being acquitted or ordered to be discharged,
shall be detained for the payment of any fees or costs attending the
prosecution for which he has been discharged, or for the reimburse-
ment of the sum allowed by the law for his support, or for any sums
whatever due for his maintenance, or for services or supplies while he
was in prison. Nor shall any court or magistrate give judgment in
any suit against a person who has been acquitted or discharged for
want of prosecution, if he shall be sued for any such fees, or for any
such sum as is allowed by law for the maintenance of prisoners.
Art. 24. The trial by jury, as regulated in the Code of Procedure,
is declared to be the mode of trial for all offences, and it cannot be
renounced.
Art. 25. There shall be no trial for any CRIME but on indictment,
nor for any MISDEMEANOR but on indictment or information, in the
manner directed by the Code of Procedure.
CODE OF CRIMES AND PUNISHMENTS.
369
CHAPTER III.
Of persons amenable to the provisions of this code, and of the cir-
cumstances under which all acts that would otherwise be offences,
may be justified or excused.
Art. 26. All persons, whether they be inhabitants of this state, or
of any other of the United States of America, or aliens, are liable to be
punished for any offence committed in this state against the laws thereof.
Citizens or inhabitants of the state may be punished for acts committed
out of the limits thereof, in those cases in which there is a special pro-
vision of law, declaring that the act forbidden shall be an offence, al-
though done out of the state.
Art. 27. An offence is a voluntary act or omission, done or made
contrary to the directions of a penal law. There can, therefore, gene-
rally be no offence, if the will do not concur with the act; but the law
has established exceptions to, and modifications of, this rule but no
modifications or exceptions, other than those expressly provided, are
to be allowed.
Art. 28. After the promulgation of a law, no one shall be excused
for a breach of it on an alleged ignorance of its provisions.
Art. 29. No person shall be convicted of any offence committed
when under nine years of age; nor of any offence when between nine
and fifteen years of age, unless it shall appear by proof to the jury,
that he had sufficient understanding to know the nature and illegality
of the act which constituted the offence.
Art. 30. If a minor shall commit an offence by command or persua-
sion of any relation in the ascending line; of his tutor or curator, or
any person acting as such; or of his master, if he be an apprentice or
servant, then the minor shall be punished for such offence by simple
imprisonment, during one half of the time to which he would have
been sentenced had he been of full age. Provided such minor have
attained the age of fifteen years at the time of the commission of the
offence; if under that age, the command or persuasion of either of the
persons, standing in either of the relations to him which are above enu-
merated, shall excuse him from punishment, if the offence committed
be a misdemeanor only; but if the offence be a crime, such minor,
under fifteen years of age, shall be committed to the school of reform,
for the purpose of being instructed in some trade, in the manner par-
ticularly provided for in the Code of Reform and Prison Discipline.
And in all cases of crimes committed by minors, under the age of
eighteen years, except those punishable by imprisonment for life, the
court may direct that the offender be, either in lieu of, or in addition
to, the punishment generally provided for the offence, be so committed
to the school of reform.
Art. 31. In like manner, a married woman committing an offence
by the command or persuasion of her husband, shall suffer no greater
punishment than simple imprisonment, for one half of the time to
which she would have been sentenced, if she had committed the offence
2 W
370
CODE OF CRIMES AND PUNISHMENTS.
without such command or persuasion. The relation of husband and
wife, for the purposes of this article, need not be proved by testimony
of the celebration of the marriage contract. Living together at the time,
and general reputation of marriage, shall be sufficient to reduce the
punishment of the reputed wife, and to increase that of the reputed
husband, in the manner hereafter directed.
Art. 32. Offences punishable by imprisonment for life, are excepted
from the operation of the two last preceding articles.
Art. 33. In all cases where a minor shall be AIDED in the commiss-
ion of an offence, by either of the persons standing in the relation to
him hereinbefore enumerated; or if the husband or the reputed hus-
band, shall aid the wife in the commission of the offence, or shall be
PRESENT during the time of its commission, without endeavouring to
prevent it, either of these circumstances shall be proof that the offence
was committed by their command or persuasion.
Art. 34. If any minor or married woman shall have committed any
offence, and the persons standing in the relations to such minor, which
are above enumerated, or the husband of the wife, shall be convicted
of having persuaded, commanded, or aided in the said offence, then
said persons so convicted shall be punished as follows, that is to say:
If the minor be under fifteen years of age at the time of committing
the offence, then the duration of the punishment, if the same shall con-
sist of imprisonment, and the amount of the fine, if any, which would
otherwise have been inflicted on such persons, shall be increased one
half. And if the minor shall be above fifteen years, then one-fourth ;
and in either case, if the punishment for such offence be imprisonment
for life, then one month of such imprisonment, in every year, shall be
in solitude.
Art. 35. No act done by a person in a state of INSANITY, can be
punished as an offence. No person becoming INSANE after he has
committed an offence, can be tried for the same. No person becoming
insane after he has been found guilty, shall be sentenced while in that
state. No person sentenced shall be punished, if he afterwards become
and continue insane.
And during the continuance of the punishment, if the convict is de-
prived of his reason, so much of the punishment as may consist of hard
labour, shall, during such insanity, cease; and the court shall make such
order with respect to the convict, as is provided in the Code of Reform
and Prison Discipline.
In all the cases mentioned in this article, the court having cognizance
of the offence, shall make order for securing the person of the accused.
The manner of ascertaining whether insanity is feigned or real, is pro-
vided for in the Code of Procedure.
Art. 36. Private soldiers and non-commissioned officers in the army,
or in the militia when in actual service, are not liable to punishment
for misdemeanors committed by the order of any officer, whose legal
military order they were bound to obey; but all officers giving or trans-
mitting the command, are liable to the penalties of the law.
Art. 37. The order of a military superior is no justification or excuse
for the commission of a crime.
Art. 38. The order, warrant or writ issued by a magistrate or court,
shall justify the person executing it for any act done in obedience
thereto, only in cases wherein the following circumstances concur:
CODE OF CRIMES AND PUNISHMENTS.
371
1. The court or magistrate must have JURISDICTION of the cause or
COGNIZANCE of the matter, in which the order, warrant or writ was
issued.
2. The writ, warrant or order, if written, must have all the substan-
tial requisites prescribed by law for such writs as it purports to be.
3. The person executing it must be an officer bound to execute, by
virtue of his office, such writs as it purports to be; or he must be a
person to whom such writ is legally directed; or he must be one legally
called upon by such officer, to aid in the execution of the order, warrant
or writ.
4. He must have no knowledge of any illegality in obtaining or exe-
cuting the order, warrant or writ.
Art. 39. The legal order of a COMPETENT magistrate or court, if
executed by a person DULY AUTHORIZED, will justify those acts which
are expressly commanded by such order, and also all those acts which
are the necessary means of carrying the order into execution, but it will
justify no other acts; the means allowed as necessary by law, are de-
tailed in the Code of Procedure.
Art. 40. If one be forced by threats or actual violence to do any act,
which, if voluntarily done, would be an offence, he shall be exempted
from punishment, by proving the following circumstances:
1. That he was threatened with the loss of life or limb, if he did
not perform the act; and that he had good reason to believe that such
threat would be executed.
2. That he made every endeavour which could be made by any man
of common courage, to resist or escape from the power of the person
using the threats.
3. That the act of which he is accused, was done while he was in
the presence of the person using the threats or violence, and during the
continuance of the same.
Art. 41. If one intending to commit an offence, and in the act of
preparing for, or executing the same, shall, through MISTAKE or ACCI-
DENT, do another act, which, if voluntarily done, would be an offence,
he shall incur the penalty for the act really done. Provided, that if
the act intended to be done, be a misdemeanor, he shall only incur the
highest penalty provided by law for the offence he intended to com-
mit, although the act done would, if he had intended it, have been a
crime.
But if the intent was to commit a crime, although INFERIOR IN DE-
GREE, he shall incur the penalty provided by law for the act really
done.
Art. 42. No event happening through MISTAKE or ACCIDENT in the
performance of a lawful act, done with ORDINARY ATTENTION, is an
offence.
Art. 43. An act forbidden by law, though done through MISTAKE or
ACCIDENT, from the want of ORDINARY CARE AND ATTENTION, is pun-
ishable.
Art. 44. The provisions of the last preceding article are subject to
modifications in the case of homicide, which are expressed in the part
of the code which treats of homicide.
Art. 45. The intention to commit an offence shall be presumed
whenever the means used are such as, in the common course of events,
must produce the event which is forbidden.
372
CODE OF CRIMES AND PUNISHMENTS.
Art. 46. The fact which constitutes an offence being proved, all facts
or circumstances on which the accused relies to justify or excuse the
prohibited act or omission, must be proved by him.
Art. 47. If any person who shall ATTEMPT TO COMMIT an offence, fail
in completing the same, or is interrupted from any cause, not depend-
ing on his own will, he shall suffer ONE HALF OF THE PUNISHMENT to
which he would have been sentenced if he had completed the whole.
Art. 48. Military offences are not comprehended in this code.
Art. 49. The Indian tribes residing within the boundaries of this
state, being governed by their own usages, no act done within their
boundaries by individuals belonging to such tribes, in their intercourse
with each other, or with other tribes, and not affecting any other per-
son, is considered as an offence against this code: in other respects they
are considered in the same light with other persons in the state, both as
to protection and liability to punishment.
Art. 50. Offences committed by slaves, form the subject of a separate
code: such offences are not included in any of the provisions of this
system.
Art. 51. The Second Book of this code contains modifications of the
general provisions contained in this chapter, which control them.
CHAPTER IV.
Of a repetition of offences.
Art. 52. Any person, who having been convicted of a misdemeanor,
shall afterwards repeat the same offence, or commit any other misde-
meanor of the same nature, shall suffer ADDITION OF ONE HALF to the
punishment he would otherwise have suffered. If the first conviction
was for a crime, the punishment for the second offence of the same na-
ture, shall also be INCREASED one half.
Art. 55. And if any person, having been twice previously convicted
of crimes, no matter of what nature, shall a third time be convicted of
any crime afterwards committed, he shall be considered as unfit for
society, and be imprisoned at hard labour for life.
Art. 54. A previous conviction in any of the United States of
America, operates the same effect as to the increase of punishment for
subsequent offences, as if the same conviction had taken place in this
state.
Art. 55. By offences of the SAME NATURE, in this section, are in-
tended all such as are comprised within the same title in the Second
Book of this code.
Art. 56. Where the punishment of the crime of which the offender
is a second or a third time convicted, is imprisonment for life, the in-
creased punishment must consist in seclusion, or such other privations
as the judges are empowered in the Second Book to direct, with respect.
to offenders in general.
CODE OF CRIMES AND PUNISHMENTS.
373
CHAPTER V.
Of principals, accomplices and accessaries.
Art. 57. An offence being the doing of an act which is forbidden
under a penalty imposed by law, or omitting to do some act, which
under like penalty is directed by law to be done; those are principal
offenders who do the forbidden act, or who being bound to do the act
enjoined, are guilty of the omission.
Art. 58. If the forbidden act be done by several, all are principal
offenders. If several are bound to perform the act which is enjoined,
all who omit it are principal offenders.
Art. 59. When the act constituting the offence is actually done by only
one or more persons, but others are present, and knowing the unlaw-
ful intent, aid them by acts, or encourage them by words or gestures;
or if not being actually present, others shall keep watch to give notice
of the approach of any one who might interrupt the commission of the
offence; or shall be employed in procuring aid, or arms, or instruments
for the performance of the act, while it is executing; or shall do any
other act at the time of executing the offence, to secure the safety or
concealment of those who perform the offence, or to aid them in its
execution: all such persons are also principal offenders, and may be
prosecuted and convicted as such.
Art. 60. When the offence is committed by SECONDARY MEANS, with-
out employing the agency of a person who may be convicted as a prin-
cipal offender, the person employing and preparing those secondary
means is a principal offender, although he may not be present when
the means he had prepared took their effect.
Art. 61. Laying poison where the person whom it is intended to
murder may take it himself; employing a child, or other innocent
person, to give it; setting a spring-gun, so that the party may fire it
himself; are examples of the secondary means intended by the last
preceding article.
Art. 62. Those persons are also principals, who, having counselled
or agreed to the performance of the act, shall be present when it is done,
whether they aid in the execution or not.
Art. 63. There may be accessaries to all offences committed with
premeditation, and accomplices to all except manslaughter, and offences
occasioned by neglect.
Art. 64. There can be neither accomplice nor accessary, except in
cases where an offence has been committed.
Art. 65. All those are accomplices who are not present at the com-
mission of an offence, but who, before the act is done, verbally or in
writing, shall advise or command, or encourage another to commit it:
Those who agree with the principal offender to aid him in committing
the offence, although such aid may not have been given:
Those who shall promise money, or other reward, who shall offer
any place or particular favour, or any other inducement; or shall men-
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ace any injury or loss of favour, in order to procure the commission
of an offence:
Those who shall prepare arms or instruments, men, money or aid of
any kind, or do any other act prior to the commission of the offence,
to facilitate its execution, and knowing that it is intended: all these
persons are accomplices.
Art. 66. No person can be found guilty as an accomplice to any of-
fence, other than such as have aided, promoted, advised or encouraged
it by some of the means set forth in the last preceding article; but it is
not necessary that the advice should be strictly pursued: it is sufficient
if the offence be of the SAME NATURE and for the same object, as the of-
fence advised or encouraged.
Art. 67. If in the attempt to commit an offence, the principal of-
fender shall make himself liable to punishment for any other act com-
mitted by mistake or accident, according to the provisions for that
purpose herein before contained, his accomplices shall be punished only
as they would have been had the offence been committed which he
intended to commit.
Art. 68. The punishment of an accomplice is the same as that de-
signated for the principal offender, excepting the increase of such
punishment provided for in the next article.
Art. 69. If the principal offender be under fifteen years of age,
whether he be found of sufficient intelligence to understand the nature
and illegality of the act or not, and there be an accomplice of full age,
the punishment of such accomplice shall be INCREASED ONE HALF and
if the principal offender be a minor, above fifteen, then the punishment.
of the accomplice shall be INCREASED ONE QUARTER.
Art. 70. Accessaries are those who, knowing that an offence has
been committed, conceal the offender, or give him any other aid, in
order that he may effect his escape from arrest or trial, or the execu-
tion of his sentence; he who aids the offender in preparing and making
his defence at law; or who procures him to be bailed, although he may
afterwards abscond, shall not be considered as an accessary.
Art. 71. The following persons cannot be punished as accessaries.
1. The husband or wife of the offender.
2. His relations in the ascending or descending line, either by affinity
or consanguinity.
3. His brothers or sisters.
4. His domestic servants.
Art. 72. The accessary shall be punished by fine and simple impri-
sonment in the manner directed by the Second Book.
Art. 73. The accomplice may be arrested, tried and punished before
the conviction of the principal offender, and the acquittal of the princi-
pal shall be no bar to the prosecution of the accomplice, but on the trial
of such accomplice, the commission of the offence must be clearly
proved, or the accomplice cannot be convicted.
Art. 74. The accessary may be arrested, but not tried without his
consent before the conviction of the principal, and the acquittal of the
principal shall discharge the person named as accessary.
BOOK II.
of offences AND PUNISHMENTS.
TITLE I.
OF THE GENERAL DIVISIONS AND DESCRIPTIONS OF OFFENCES AND PUNISHMENTS.
CHAPTER I.
Definition and divisions of offences.
Art. 75. Offences are those acts and omissions which are forbidden
by positive law, under the sanction of a penalty.
Art. 76. There are two divisions of offences; establishing distinctions
drawn, the one from the degree of the offence, the other from its object.
By the first division, all offences are either CRIMES OR MISDEMEANORS.
By the second, they are PUBLIC OR PRIVATE OFFENCES.
Art. 77. All offences punishable by confinement at hard labour, or
by a forfeiture of any civil or political right, are crimes; all other of
fences are misdemeanors.
All offences to which either of the punishments enumerated in the
last preceding article are expressly assigned, or to which the court have
a discretionary power to apply them, are punishable in that manner
within the meaning of that article.
Art. 78. Offences, in relation to their object, are public or private
offences.
Art. 79. Those are public offences which principally affect the state
or its government in any of its branches, or any of its institutions, or
operations for the benefit of the citizens. Those are public offences
which affect,
1. The sovereign power of the state.
2. The legislative power.
3. The executive power.
4. The judiciary power.
5. The public tranquillity.
6. The right of suffrage.
7. The freedom of the press.
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8. The public records.
9. The current coin and public securities.
10. The public revenue.
"
11. The commerce and manufactures.
12. The public property.
13. The public roads, embankments, navigable waters, and other
property held by the sovereign power for the common use of the people.
14. The public health.
15. The morals of the people.
Art. 80. Those are private offences which principally affect indivi-
duals, or such societies as are either established or permitted by law;
they are such as affect them,
1. In the exercise of their religion.
2. In their honour and reputation.
3. In their persons.
4. In their profession and trade.
5. In their civil and political rights and conditions.
6. In their property.
Art. 81. The division of offences marked out by this chapter, is in-
tended only for the establishment of order in the arrangement of the
code; each offence will be hereinafter particularly defined and illustra-
ted; and no act or omission is an offence, which does not come within
some one of those definitions as they are explained and illustrated.
CHAPTER II.
Of punishments.
Art. 82. To enforce the performance of a duty, or to give compensa-
tion for or prevent the infraction of a right, is the province of civil law.
Penal law designates such infractions as require coercion or punishment
to prevent or repress them; and it provides for each wrong thus desig-
nated, the requisite remedy of prevention, removal of the evil, or
penalty for its commission. This code is strictly penal: compensation
forms no part of its sanction. But no punishment deprives the party
who is injured by an offence, of his civil remedy; the reservation of
such right to civil redress, is no where expressly made, but is in all
cases understood.
And
Art. 83. The claim of the party injured by an offence, when it be-
comes liquidated by a judgment, is preferred in cases of insolvency,
to the claim of the state for a fine imposed for the same offence.
if the fine be levied, and there is no property sufficient to satisfy the
execution on the private suit, the amount of the fine, or as much of it
as may be necessary, shall, on petition against the officer of govern-
ment in whose hands it may be, be paid over to satisfy the judgment
obtained by the party injured.
Art. 84. The civil remedy for the wrong occasioned by an offence
may be pursued, either against the offender (when he is not confined
at hard labour), or against the curators of his estate, when they are
appointed according to the directions hereinafter contained.
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Art. 85. The punishments and penalties to be incurred for offences
under this code are,
1. Pecuniary fines.
2. Simple imprisonment.
3. Imprisonment in close custody.
4. Deprivation of office.
5. The suspension of some one or more political or civil rights for
a limited period.
6. The forfeiture of some one or more political or civil rights.
7. Imprisonment and hard labour for a limited time.
8. Imprisonment at hard labour for life. Both these last punishments,
with or without the addition of solitary confinement and other priva-
tions, as are directed in different parts of this code.
Art. 86. In addition to these punishments, where the offence is of a
continuous nature, there must be judgment for its discontinuance.
Art. 87. In conviction for offences that affect honour or reputation,
the judgment may, in addition to, or as an alternative for the punish-
ment assigned, grant an honorary reparation, in the manner designated
in that class of offences.
Art. 88. Pecuniary fines imposed for offences shall be levied by ex-
ecution in the name of the state; in the same manner as is directed by
the practice in civil cases, for enforcing the execution of a judgment.
for debt, in the highest court of original jurisdiction in the state; and
the fine shall be a lien upon real property, from the time it is registered
in the office of the register of mortgages, in the manner directed by
law for the registry of judicial mortgages.
Art. 89. The death of the offender operates as a discharge of all
pecuniary fines imposed upon him even if execution be issued, the
officer shall proceed no further therein. If the offender die before a
sale on such execution, the lien created by the registry of such fine
shall, by order of the court, be taken off, on proving the death of the
offender; unless real property shall have been sold, subject to such
lien, and the amount thereof shall have formed part of the price; in
which case, the amount of such fine shall be levied by sale of the said
real property, notwithstanding the death of the person on whom the
fine was imposed.
Art. 90. A pecuniary fine shall in no case exceed one fourth part of
the value of the property, real and personal, of the person on whom it is
imposed; and such person may, in all cases, have any pecuniary fine
reduced to that amount, on showing the true value of his property, to
the satisfaction of the court; in which case the court must commute the
part of the fine that is deducted into imprisonment; calculating one
day's imprisonment for every two dollars deducted from the fine, and
the imprisonment, or any part of it, may be in close custody with the
limitation contained in the next article.
Art 91. The wearing apparel, implements of trade, and household
furniture of the delinquent, shall not be seized on an execution to sat-
isfy a pecuniary fine, nor shall his arms or accoutrements as an officer
or private in the militia. If no other property be found, the court
imposing the fine may, on such return being made on the execution,
direct that the offender be imprisoned (either in close custody or in
simple imprisonment, for the whole or a part of the time, at their dis-
cretion) one day for every two dollars contained in the amount
2 X
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of the fine imposed; provided, that such imprisonment do not exceed
the term of ninety days, whatever be the amount of such fine; and
such imprisonment shall operate as full satisfaction of such fine.
Art. 92. Simple imprisonment is inflicted by the mere confinement
of the offender in the common prison, appointed for that purpose by
law, which shall be in a building or apartment distinct from the peni-
tentiary. This punishment consists simply in the confinement of the
person within the walls of such prison, the prisoner being debarred
neither the use of books, nor the means of writing, nor the society of
such persons as may desire to see him during the hours established by
the general regulations for the prison.
Imprisonment in close custody is an imprisonment within a single
chamber of the common prison, during which the prisoner is to be
allowed no other sustenance than the common prison allowance, and is
debarred all visits, except such as may be specially allowed by the judge
in particular cases of business or sickness.
Art. 93. The civil rights, which may be forfeited or suspended by
virtue of any sentence importing such forfeiture or suspension, are
divided into three classes:
1. The right of exercising the duties of executor, administrator,
tutor, curator, attorney at law, attorney in fact, or being appointed to any
PRIVATE OFFICE, which is now, or may hereafter, be established by law.
2. The right of appearing in person, or by attorney, in any court,
as party to a suit, either as plaintiff or defendant.
3. The right of bearing arms in defence of the country, and of serv-
ing on juries.
Art. 94. All political rights are suspended by a sentence of impri-
sonment at hard labour, during the period for which such imprisonment
is directed; if such sentence be for life, all those rights are forfeited.
Art. 95. A sentence of imprisonment at hard labour suspends, dur-
ing the term of such imprisonment, all civil rights. If such sentence
be for life, all civil rights are forfeited. Forfeiture or suspension of
civil rights is directed in certain cases, which are specially provided for.
Art. 96. A suspension or forfeiture of political rights, whether ex-
pressly pronounced or implied, by the operation of the two last pre-
ceding articles, deprives the offender of any PUBLIC OFFICE he may
hold at the time.
Art. 97. When sentence of forfeiture or suspension of civil rights,
or of those of the first class only, has been expressly pronounced or
implied by a sentence of imprisonment at hard labour, all the duties,
trusts, or PRIVATE OFFICES, coming within the first class of civil rights,
are vacated by the sentence; and some other person shall be appointed
to fulfil the same, in the same manner as if the vacancy had been occa-
sioned by death.
Art. 98. During the term of imprisonment at hard labour, the ad-
ministration of the affairs of the convict is committed to a curator,
named in the manner directed by the Code of Procedure.
Art. 99. Imprisonment at hard labour is inflicted in the following
degrees:
1. At labour in classes of convicts, in the manner directed by the
Code of Reform and Prison Discipline.
2. At labour in solitude.
3. In solitude, with occasional labour.
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Art. 100. When any one convicted of murder under trust, assassina-
tion, or parricide, shall die in prison, his body shall be delivered for
dissection; and the court may, at their discretion, add the same provision
to their judgment in the case of simple murder or rape.
Art. 101. The punishment of imprisonment at hard labour admits of
aggravation and alleviation, in different offences, as to food, dress, hours
of labour, solitude and other particulars which are described in this
code, and in the Code of Reform and Prison Discipline.
Art. 102. For different modifications of the same offence, aggravations
and alleviations of punishment are directed in this code, by a reference
to the punishment assigned to the principal offence; which it orders to
be increased or diminished in a certain proportion. To apply this pro-
portion, the following rules are to be observed:
1. If the direction be to diminish the punishment of imprisonment
for life, the proportion shall be taken on a period of twenty-four years.
2. If the punishment directed to be increased or diminished leave a
discretion to the court between a longer and a shorter term of time, or
a greater or a smaller fine, the highest and the lowest terms or sums
shall be diminished or increased in the proportion directed.
3. When no lower term or sum is fixed, the highest term or sum
must be increased or diminished in the proportion directed, as the
highest limit.
The court must determine what judgment they would
have probably rendered for the simple offence, and take that as the sum
or term on which to calculate the proportion of punishment for the
modified offence.
4. In all cases where a discretion is given to the court, they must
observe the last preceding rule; and within the increased or diminished
limits, calculate the increase or diminution of punishment for the mo-
dified offence, upon the term or sum they would have assigned to the
simple offence.
5. Where the punishment is a forfeiture of civil or political rights,
and a diminution is directed, the proportion shall be determined by a
suspension of those rights, calculated on a number of twenty-four years
as the whole.
6. When the judgment is a suspension of such rights for a definite
time, the proportion shall be calculated on that time.
All the other incidents of the whole punishment are annexed to the
proportion during the period it lasts.
Art. 103. Fines for certain offences are directed to bear a certain pro-
portion to the income or emoluments of the office held by the offender.
To determine the amount of these fines, the court may examine wit-
nesses as to the reputed emoluments, which may be reduced, if higher
than the truth, by the oath of the defendant, which it is optional with
him to give.
Art. 104. Where for the offence of bribery a fine is directed to be
imposed, bearing a certain proportion to the value of the bribe offered or
received, and such value cannot be ascertained, or if the bribe is some-
thing which cannot be appreciated in money, the fine imposed shall
not be less than five hundred dollars, nor more than three thousand
dollars, unless there be a special provision to the contrary.
Art. 105. No other punishments can be inflicted for any offence than
those enumerated in this chapter, and only in the cases provided for
by this code.
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Art. 106. Where one person shall be guilty of several offences before
he has been convicted of any, the punishment for each successive of-
fence is cumulative; but the augmented punishment prescribed for the
repetition of offences is not thereby incurred; and where the punish-
ment for a former offence is less than imprisonment for life, the im-
prisonment incurred for the second conviction shall commence at the
expiration of the first imprisonment.
Art. 107. The person of a convict who is condemned to imprison-
ment, which brings with it a forfeiture of his civil rights, is under the
protection of the law, as well as in its custody. Any restraint or
violence to his person, beyond that necessary to the execution of the
sentence of the law, is punishable in the same manner as it would be
if he were not convicted.
Art. 108. The privation of the right to bear arms in defence of the
country, does not give an exemption from military duty. Persons
under this disability are forced to serve, but without arms, on working
parties, and in the drudgery of the service.
TITLE II.
OF OFFENCES AGAINST THE SOVEREIGN POWER OF THE STATE.
CHAPTER I.
Of treason.
Art. 109. Treason is defined by the constitution of the state. It con-
sists in levying war against the state, or in adhering to its enemies,
giving them aid and comfort; but as by the nature of the union between
the different states, the levying war against one state is a levy of war
against the whole, and the constitution of the United States having
made that act treason, and vested the cognizance of the crime in the
courts of the United States, no provisions are deemed proper to be
made respecting that offence.
CHAPTER II.
Of sedition.
Art. 110. Whoever shall, by FORCE OF ARMS, attempt to DISMEMBER
the state, or to SUBVERT OR CHANGE the constitution thereof, shall be im-
prisoned at hard labour in solitude for life, and after death his body
shall be delivered for dissection.
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381
Art. 111. To constitute this offence, there must be not only a de-
sign to dismember the state, or to subvert or change its constitution, but
an attempt must be made to do it by FORCE.
Art. 112. The attempt consists in enlisting men, preparing arms, or
making an assemblage of men, armed or otherwise arrayed, in such
a manner as to show the design to effect their object by force. This is
sufficient evidence of the attempt, whether any actual violence be com-
mitted or not.
Art. 113. If any one shall, by writing, printing, or verbally, counsel or
EXCITE the people of this state, or of any part thereof, to commit either
of the offences described in the preceding part of this chapter, or to re-
sist by force the legal execution of any constitutional law of the state,
he shall be fined not less than five hundred dollars, nor more than two
thousand dollars; shall be imprisoned in close custody not less than three
nor more than twelve months, and be suspended from his political rights.
for four years.
Art. 114. It is not necessary, to constitute this offence, that the crime
advised should be committed.
CHAPTER III.
Of exciting insurrection.
Art. 115. Any free person who shall aid in any insurrection of slaves
against the free inhabitants of this state, who shall join in any secret
assembly of slaves, in which such insurrection shall be planned, with
design to promote it, or shall excite or persuade any slaves to attempt
such insurrection, shall be imprisoned at hard labour for life.
Art. 116. By "insurrection," is meant an assembling with ARMS,
with intent to regain their liberty by force.
Art. 117. The term "excite" in the description of this offence, means
to offer any persuasion or inducement, which has insurrection for its
immediate object.
It excludes the construction that would make those
guilty who only use language calculated to render the slaves discon-
tented with their state. This, if done with design to promote such
discontent, is an offence punishable by fine, not less than fifty, nor more
than two hundred dollars; or imprisonment, not less than thirty days,
nor more than six months, in close custody.
TITLE III.
OF OFFENCES AGAINST THE LEGISLATIVE POWER.
Art. 118. If any one shall designedly, and by FORCE, prevent the
general assembly of this state, or either of the houses composing it, from
meeting, or shall, with intent to prevent such meeting, by the use of
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personal violence or threats thereof, prevent any of the members of the
general assembly from attending the house to which they may belong,
or shall by force or threats thereof force either of the said branches of
the general assembly to adjourn or disperse, or to pass any resolution
or law, or do any other act; or to reject any resolution or law which
they constitutionally might pass; he shall be fined not less than five
hundred dollars, nor more than two thousand dollars; be confined not
less than five, nor more than ten years at hard labour, and shall forfeit
his political rights.
Art. 119. Whoever shall use any threats of violence to any member
of the general assembly, with intent to influence his official conduct, or
shall make any assault on him in consequence of any thing he may
have said or done, as a member of the assembly, or of his conduct as a
member thereof, shall be fined not less than one hundred dollars, nor
more than five hundred dollars; and be imprisoned in close custody,
not less than one, nor more than six months.
Art. 120. Whoever shall BRIBE or offer to BRIBE any member of the
general assembly, shall be fined in a sum equal to four times the value
of the bribe, and if the amount thereof cannot be ascertained, or cannot
be appreciated in money, then in a sum not less than one thousand, nor
more than two thousand dollars; shall suffer imprisonment at hard la-
bour, not less than six months, nor more than one year, and be sus-
pended from all political rights for five years.
Art. 121. If any member of the general assembly shall receive or agree
to receive a BRIBE, he shall be fined in a sum equal to five times the
value of the bribe, and if the value thereof cannot be ascertained, or
cannot be appreciated in money, then in a sum not less than two thou-
sand, nor more than five thousand dollars; shall forfeit his political
rights, and be imprisoned in solitude and at hard labour, not less than
one, nor more than two years.
TITLE IV.
OF OFFENCES AGAINST THE EXECUTIVE POWER.
CHAPTER I.
Art. 122. If any person elected or appointed to any EXECUTIVE
OFFICE, shall do any official act, before he shall have given security, if any
is required by law, or before he shall have taken the oaths of the office,
when they are required by law, he shall pay a fine equal to one half
year's emolument of his office.
Art. 123. Any person who shall BRIBE, or offer to BRIBE AN EXECU-
TIVE OFFICER, shall be suspended from the enjoyment of his political
rights, for not less than four, nor more than six years, be fined not less
than three times the value of the bribe offered, and be imprisoned in
close custody, not less than two, nor more than six months.
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383
Art. 124. If any one by VIOLENCE OFFERED TO THE PERSON of any
executive officer, or by threats of violence, shall induce, or force him
to do any official act, in an illegal manner, or to do under colour of his
office any other act, which he is not authorized to do, or to omit the
performance of any official act, which he is bound to perform, the of
fender shall be imprisoned in close custody, not less than three, nor
more than twelve months, and shall be fined in a sum not less than
fifty, nor more than two hundred dollars: in addition to the punish-
ment provided by law for the act or omission, to which he compelled
the officer, if it be an offence, and in addition also to the punishment
directed by law for the violence itself, considered as unconnected with
the motive for offering it.
Art. 125. If any one shall by force resist any executive officer in
the performance of his office, or attempt by force to commit either of
the acts made punishable by the last preceding article, without suc-
ceeding in such resistance or attempt, he shall suffer one half the pun-
ishment directed by the said article.
CHAPTER II.
Of offences committed by executive officers.
Art. 126. Any EXECUTIVE OFFICER who shall receive a BRIBE, shall
forfeit his political rights, and be imprisoned, not less than one, nor more
than two years; one-fourth of the time in close custody; and shall be
fined not less than four times the value of the bribe received.
Art. 127. If any executive officer shall corruptly agree to make any
appointment, or do any other official act in consideration of some AD-
VANTAGE (which is not incident to the act) given or promised to him
for such act, but which ADVANTAGE does not come within the definition
of an EMOLUMENT, he shall forfeit the amount of the emoluments of his
office for not less than six months, nor more than two years.
Art. 128. If any executive officer shall EXTORT money, or OTHER
REWARD, for the performance of acts he was obliged by law to perform,
and for which no remuneration is given by law, or shall extort more
than is allowed by law for the performance of any service, or shall
EXTORT money or other REWARD from any one, under the pretence that
he has performed services for which a remuneration is given by law,
when in fact no such services have been rendered, he shall be impri-
soned in close confinement, not less than two months, nor more than
one year, and shall moreover forfeit the office he holds, and be fined in
a sum equal to one year's salary or emoluments of the said office.
Art. 129. If any executive officer shall RECEIVE, or agree to RECEIVE,
any EMOLUMENT whatever, though voluntarily given, for doing any act
required to be done by virtue of his office, or for refraining from doing
any thing, which he is not authorized to do, if the law does not ex-
pressly authorize the receipt of such emolument; or shall receive any
emolument greater in value than the sum determined by law for any
services rendered by virtue of his office, although such emolument be
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voluntarily given, he shall forfeit the amount of one half year's salary
or emoluments of his office.
Art. 130. If any executive officer shall, under pretence of performing
the duties of his office, do any act which amounts to an offence, he shall
suffer an additional punishment of one half, to that which is by law
provided for the offence when committed by another.
Art. 131. If any executive officer shall undesignedly do any act, under
colour of his office, which he is not authorized by his office to perform,
or shall negligently omit to do any act which he ought by virtue of his
office to perform, by which act or omission any individual or society
receives such injury as would entitle them to a civil action, such officer
shall be fined, in a sum not less than two months, and not more than
six months, of the emoluments of his office. This article does not ex-
tend to any other such act or omission, as by any other part of this code
is created an offence.
Art. 132. If any of the acts or omissions described in the last preced-
ing section shall be intentionally done, or made the party guilty thereof,
shall, in addition to the fine, be suspended from his political rights, for
not less than two, nor more than four years.
Art. 133. All the articles of this title, which impose penalties upon
executive officers for offences, extend to the deputies and clerks of such
officers who shall commit the same offences.
Art. 134. Every person entrusted by the officer with the performance
of his official duties, is considered as a deputy for the purpose of this
section, whether the officer had a right to appoint a deputy or not.
Art. 135. Every person who publicly exercises the duties of any office,
is subject to the penalties imposed by this section; although there be
such defect or informality on his appointment or election, or any such
omission to comply with the formalities required by law, as would ren-
der his official acts invalid.
Art. 136. The principal officer is considered as himself guilty of all
such offences committed by his deputy, in relation to his office, as are
committed with his knowledge or consent; and he shall be presumed
to have known and consented to such offence, if it can be shown that
the deputy had, before the act complained of, committed a similar offi-
cial offence, while in his service, to the knowledge of the officer; and
that after such knowledge, he continued to employ him in the perform-
ance of his official duties.
Art. 137. The provisions of this and of the last preceding chapter,
relating to bribery; extend to those who exercise any CORPORATE or
PRIVATE office, and to those who may bribe or attempt to bribe them.
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385
TITLE V.
OF OFFENCES AFFECTING THE JUDICIARY POWER.
CHAPTER I.
Of offences committed by and against judges or jurors in their
official capacity.
SECTION I.
Of offences committed by judges or jurors.
Art. 138. If any judge or juror shall take a bribe, he shall be fined
five times the value of the bribe received, shall suffer imprisonment, in
close confinement, not less than six, nor more than twelve months; and
shall forfeit his political rights.
Art. 139. If any judge shall maliciously, but without being bribed, do
any official act, or render any judgment, which he is not by law author-
ized to do or render, or shall maliciously omit to do any act which he
ought, by virtue of his office, to perform, he shall forfeit his political
rights, and be fined to the amount of his income of office for one year.
Art. 140. If any judge shall corruptly agree to give any judgment, or
to do any other official act, in consideration of some advantage (which
is not incident to the official act) given or promised to him for render-
ing such judgment or doing such act, which advantage shall not come
within the definition of an emolument, he shall forfeit his office and be
fined in the amount of the income thereof for one year.
Art. 141. If any judge shall receive from any person whatever, unless
he be a relation in the ascending or descending line, or a collateral rela-
tion within the second degree, any gift or donation whatever, of any
assignable value, unless it be made by last will and testament or codicil,
he shall be fined in a sum equal to six months' income of his office.
Art. 142. If any judge, whose duty it shall or may be to assist at the
drawing of jurors to form the panel for the grand jury, or the petit
jury in any court in this state, shall designedly put, or consent to the
putting of any name on the said panel not drawn according to law, or
shall omit to put on such panel any name which shall be legally drawn,
or shall sign or certify any panel of names not drawn according to
law, such judge, or any other person who shall designedly aid therein,
shall be fined not less than two hundred dollars, nor more than one
thousand dollars, and shall be imprisoned not less than one, nor more
than six months; and if the offence shall be committed at the solicita-
tion of any person accused of an offence, or of the prosecutor, or any
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party in a civil suit; the offender shall also be suspended from the ex-
ercise of his political rights for five years.
Art. 143. If any juror shall (except in the deliberation with his fellow
jurors) make any promise or agreement to give a verdict for or against
any one accused of any offence, or for or against any party to a civil
suit; or shall receive any papers or evidence from the prosecutor or the
accused in any criminal suit, or either of the parties in any civil suit,
other than such as shall be delivered in open court, he shall be fined
not less than fifty, nor more than four hundred dollars, or may be im-
prisoned not exceeding thirty days, or both.
Art. 144. If any judge, who is allowed to take fees or compensation
for any official act that he is authorized to do, whether of a judicial or
executive nature, shall exact and receive more for such service than by
law he is authorized to receive, he shall pay a fine equal to one year's
income of his office, and shall forfeit his political rights.
Art. 145. If any judge, even with the consent of the party paying the
same for any official act, whether of a judicial nature or executive na-
ture, for which he is authorized to take any fees or compensation, shall
receive any greater sum than that allowed by law for such service, he
shall be fined in a sum equal to six months' income of his office.
Art. 146. No judge shall take any part, either by sitting as judge, or
deciding any point, or advising with the other judges, either in or out
of court, in the trial or hearing of any cause in which or in the contro-
versy out of which it has arisen he shall have been employed either as
counsellor or attorney, or which or in the controversy of which it shall
have arisen he shall have acted as ARBITRATOR, or on any former trial of
which he shall have been sworn as a juror, or in which he has any in-
terest, or to which any of his ascendants or decendants, or any collateral
relation, either by consanguinity or affinity, within the third degree,
are parties, or are anywise interested; nor shall any of the other judges
of the same court consult with, or take the opinion of such other, in or
out of court, in any such cause as is above described. And any judge
who shall designedly offend against any provision of this article, shall
be fined in a sum equal to his salary and emoluments for six months.
Art. 147. The first article of this chapter relates to ARBITRATORS as
well as judges; and all the preceding articles of this chapter, except
the fourth, relate to justices of the peace as well as judges.
SECTION II.
Of offences against judges or jurors in their official capacity.
Art. 148. If any one shall bribe or offer to bribe any judge, justice
of the peace or arbitrator or juror, either of the grand jury or trial
jury, he shall be confined in close custody, not less than two, nor more
than six months, and shall be fined in a sum equal to four times the
value of the bribe offered or given.
Art. 149. If any one by violence or threats of bodily harm, or illegal
injury to property or reputation, shall attempt to oppose or influence
any judge or justice of the peace in the execution of any official act, or
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shall in like manner attempt to force or influence any judge, justice of
the peace or ARBITRATOR or juror to render or find any judgment, order,
verdict, or indictment, or to do any other official act, he shall be fined
not less than fifty, nor more than four hundred dollars; or be imprison-
ed, not less than twenty days, nor more than six months, or both; and
the imprisonment, or any part of it, may be in close custody, in addi-
tion to any punishment that may be incurred by the violence used.
Art. 150. If any one, with intent to influence the verdict of a jury in
a criminal or civil suit, shall any where but in open court, or by leave of
the court, exhibit to any person drawn or summoned to serve as a grand
juror or petit juror during the term at which such suit is to be tried,
knowing or believing him to be so summoned or drawn, any evidence.
in such suit, or use any arguments in favour of, or against either of
the parties in such suit, he shall be fined not less than twenty, nor more
than one hundred dollars, and shall be imprisoned not less than five,
nor more than thirty days; and if the offender be an officer of justice,
or an attorney or counsellor, or an officer of the court, the punishment
shall be double.
Art. 151. If any one shall, during the pendency of any civil suit, or
criminal prosecution, publish or print any argument, statement or ob-
servations relating to such cause, of such a nature as to influence the
verdict of a jury, or to excite any public prejudice for or against either
of the parties in such cause, he shall be imprisoned, not exceeding thirty
days, or fined not exceeding two hundred dollars.
Art. 152. But nothing in the preceding article contained, shall prohi-
bit in any stage of a criminal prosecution, the publication of a true
statement of any judicial proceeding, or the examination of witnesses
judicially taken, with the exceptions contained in the Code of Procedure,
in cases affecting decency and morals.
CHAPTER II.
Of offences against officers of justice and officers of courts.
Art. 153. Whoever shall BRIBE or offer to BRIBE any officer of justice,
or any clerk, translator, or other officer of a court of justice, he shall
be imprisoned not less than one, nor more than six months, shall be
fined not less than one hundred, nor more than five hundred dollars,
and be suspended from his political rights for five years.
Art. 154. Whoever shall forcibly oppose any officer of justice, know-
ing him to be such, in the lawful execution of an official act, he shall
be imprisoned not less than ten days, nor more than six months; and
shall be fined not less than fifty, nor more than five hundred dollars;
and the whole or any part of the imprisonment may be close custody.
Art. 155. Persons to whom a special warrant is directed in the man-
ner prescribed in the Code of Procedure, and those who are by the prc-
visions of the same code, authorized to make arrests, without warrant
in the cases allowed by law, are officers of justice within the purview
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of this title, while actually employed in executing such warrant or
making such arrest.
Art. 156. To constitute this offence, it must be known not only that
the person opposed is an officer of justice, but that the act he is doing
is an official one; this knowledge may be proved by other circum-
stances, but no other proof is necessary than that the officer (if he were
one) at the time gave notice of his official character, and of the purpose
of his act.
Art. 157. The offence is not committed by an opposition to any others.
than official acts, therefore the penalty is not incurred by opposing an
officer of justice, when he attempts to do any act that is not authorized
by his legal powers, or to do an authorized act by illegal means, the
opposition, if confined in purpose to that part of the act which is ille-
gal, and in degree to the force necessary to prevent its execution, does
not amount to this offence.
Art. 158. No other error in a warrant, or order, will justify an oppo-
sition to it than the following:
1. That it was not issued by either a court or magistrate.
2. That the person named or described in the warrant is not the per-
son against whom the warrant or order is attempted to be executed.
3. That the person executing it is neither the one to whom it is di-
rected, nor an officer of justice; if he be an officer of justice, he may
execute the warrant to whomsoever it may be directed.
4. That the warrant or order is issued or allowed by a magistrate,
whose authority does not extend to the place in which it is attempted
to be executed.
Art. 159. Force used against an officer of justice while in the legal
execution of his duty, does not amount to this offence, unless the intent
be to prevent the execution of his duty, although the force should have
that effect.
Art. 160. In making an arrest under a warrant, a forcible opposition
to it is not justified by a refusal to deliver the warrant out of the officer's
hands, provided he show it when required.
Art. 161. If by reason of the opposition the officer of justice is pre-
vented from executing his duty, the punishment shall be increased one
half.
Art. 162. This offence may be committed as well by a person not
concerned in the official act which is opposed, as by the party against
whom it is directed.
Art. 163. All official acts that can be lawfully done by an officer of
justice, either in obedience to the lawful order of a court or magistrate,
whether of a civil or criminal jurisdiction; or such as he is required to
do as conservator of the peace, or for the prevention of offences, or se-
curing the persons of offenders, come within the purview of this chapter.
Art. 164. Threats of such violence as the party has it in his power to
execute, and as would be sufficient to intimidate a man of common
firmness, amount to a forcible opposition within the meaning of this
and the next chapter, as to rescue.
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CHAPTER IV.
Of rescue.
Art. 165. Whoever shall by force set any one at liberty, who is in
custody on a lawful arrest for any offence, shall suffer one half of the
punishment assigned by law to the offence for which the person rescued
was charged. If the arrest was on a civil suit, the punishment shall be
fine, not less than fifty nor more than five hundred dollars, or imprison-
ment in close custody not less that thirty days, nor more than six
months, or both; provided, that whatever may be the punishment
assigned to any offence for which the person rescued shall have been
arrested, no judgment, on a conviction for rescuing one who was arrest-
ed for an offence, shall be less than that assigned for the rescue of one
arrested in a civil suit.
Art. 166. If the warrant, under which the arrest was made, be so
defective as to justify the party arrested in resisting it, according to the
previous disposition of this code, and he does so resist; those who aid
him in a legal manner are not guilty of a rescue.
Art. 167. In like manner, those who aid a person in resisting an arrest
made without warrant, under circumstances which do not legally justify
such arrest, are not guilty of a rescue.
Art. 168. There can be no rescue, unless there has been an arrest ;
any forcible opposition to making a lawful arrest is another offence
already provided for.
Art. 169. If the party arrested make no opposition, and the officer or
other person making the arrest is proceeding with the prisoner to a
magistrate for examination, when he is forcibly set at liberty, it is a
rescue, although the original arrest were unlawful.
Art. 170. If the rescue be after a commitment is made out, and before
the prisoner is actually received in prison, no defect whatever in the
commitment can justify the rescue.
CHAPTER V.
Of escape.
Art. 171. If any one lawfully arrested for whatever cause, shall escape
from custody, without being legally discharged, he shall be fined not
exceeding one hundred dollars, or imprisoned not exceeding sixty
days; provided such escape be not effected by breach of prison or by
violence.
If the escape be effected by violence, it shall be punished in the man-
ner hereinbefore directed with respect to those who oppose executive
officers of justice in the performance of their duty.
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Art. 172. Any executive officer of justice, or other person having the
legal custody of any one who has been lawfully arrested for any offence,
who shall voluntarily suffer such person to escape or to be rescued,
shall suffer one half of the punishment of the offence with which the
person escaping was charged; and if an officer, he shall be suspended
from his political rights for four years.
Art. 173. If the escape or rescue be owing to negligence, the punish-
ment shall be one-fourth of that which would have been incurred by
the person escaping, had he been found guilty.
Art. 174. Offenders against the provisions of either of the two last pre-
ceding articles may be convicted, although the person escaping should
not be retaken or should be acquitted on trial.
CHAPTER VI.
Of breach of prison.
Art. 175. If any one legally committed to any PUBLIC PRISON, either
before or after conviction, for any offence or in any civil suit, shall, by
breaking the prison or by violence offered to any person employed
to keep or guard such prison, escape or attempt to escape from such
prison, he shall be imprisoned in close custody, not less than six
months, nor more than two years, to commence after the expiration of
his original imprisonment.
Art. 176. If any one shall rescue or attempt to rescue any
any other per-
son who is confined in any public prison, by breaking such prison, he
shall be imprisoned at hard labour, not less than two nor more than
five years, in addition to the punishment assigned for the offence of
rescuing such prisoners, should the rescue be effected.
Art. 177. The penalty of the last preceding article is incurred whe-
ther the prisoner be legally or illegally committed.
Art. 178. If any one shall, by any means not amounting to breach
of prison, aid any prisoner legally confined in a public prison to escape,
or shall supply instruments for breaking the prison, or other means of
escape, for the purpose of attempting it, whether the escape be effected
or not, he shall be fined not less than one hundred nor more than five
hundred dollars, and be imprisoned not less than one nor more than
six months in close custody, or by simple imprisonment for the whole.
or part of the time.
Art. 179. If the breach of prison be effected by the means set forth in
the last preceding article, the person aiding or providing the means
may also be punished as an accomplice in that offence.
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391
CHAPTER VII.
Of offences committed by officers of justice and officers of courts in
their official capacity.
Art. 180. All the articles of the first and second chapters of the fourth
title of this book, entitled, "of offences committed by executive offi-
cers," apply to officers of justice and officers of courts, they being com-
prehended in the definition of executive officers.
CHAPTER VIII.
Of counsellors and attorneys at law.
Art. 181. If any of the offences enumerated in the other chapters of
this title, and not provided for in this chapter, shall be committed by
an attorney at law or a counsellor at law, the punishment assigned to
such offence shall be increased one half.
Art. 182. Any counsellor at law, or attorney at law, or any attorney
in fact, charged with the prosecution or defence of a civil suit, who
shall receive a bribe, shall be fined a sum equal to five times the value of
the bribe received, shall be imprisoned not less than six nor more than
twelve months, and shall forfeit his political rights, and his civil rights
of the first class.
Art. 183. If any attorney at law, or counsellor at law, or any attor-
ney in fact, who is charged in any prosecution or defence of a civil
suit, or the defence of any one accused of an offence, shall designedly
divulge any circumstance which came to his knowledge in virtue of his
trust, to the injury of his client; or shall give counsel to the opposite.
party, to the injury of his client; or after having engaged to prosecute
or defend any civil suit, and been consulted on the merits of the case,
for any one, shall, on account of the non-payment of fees, or for any
other cause or pretext, appear for the opposite party, either as his attor-
ney or counsellor in court, or secretly as his adviser; or shall, with
intent to injure the party for whom he is employed, do any other act
which he is not legally required to do, that is injurious to the interest
of such party, or omit to do any other lawful official act, whereby his
client shall suffer in his interest or reputation; he shall, for either of
these offences, be imprisoned not less than twenty days, nor more
than six months; and if an attorney or counsellor at law, be suspended
from the exercise of his profession not less than three nor more than
twelve months; and if an attorney in fact, in addition to the imprison-
ment, be fined not less than one hundred nor more than five hundred
dollars.
Art. 184. If any attorney at law, or counsellor at law, or any attor-
ney in fact, employed to conduct a suit or defence in court, shall,
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within five days after demand in writing, by a person legally author-
ized to make such demand, refuse or neglect to pay the balance due on
any sum of money, or deliver any notes or other securities he may
have received for the person by whom he was employed, on any suit
in court, or on any demand he was professionally employed to make,
or any papers with which he was intrusted in his official capacity, he
shall, if an attorney in fact, be fined not less than one hundred, nor
more than three hundred dollars; and if a counsellor at law, or
attorney at law, shall be suspended from the exercise of his profession,
not less than six, nor more than twelve months, and until he shall have
paid the sum due, with interest.
Art. 185. No attorney or counsellor at law, or attorney in fact, shall
be liable, under the preceding article, for retaining out of the moneys
by him received, any sum due to him by his employer, for any liqui-
dated debt due to him, or for legal or customary and reasonable fees and
costs or commissions; nor shall he be guilty of any offence in retain-
ing any papers or securities he may have received until such sums be
paid, as may be due for costs or fees in any suit or controversy, for
the defence or prosecution of which the papers were delivered to him;
nor for not delivering papers that have been casually lost or destroyed.
Art. 186. If any attorney or counsellor at law shall fraudulently com-
mence, prosecute or defend any suit in any court in this state, in the
name of any person by whom he has not been authorized to prosecute
or defend such suit, he shall be suspended from the exercise of his pro-
fession, not less than six months, nor more than two years.
Art. 187. Whoever shall bribe or offer to bribe any attorney or
counsellor at law, or any attorney in fact, who is charged with the con-
ducting a suit in court, shall be imprisoned in close custody, not less
than one nor more than six months, and shall pay a fine equal to four
times the amount of the bribe given or offered.
Art. 188. All offences committed by counsellors or attorneys at law,
shall be tried in the same manner as other offences, except as is herein-
after provided, in the case of offences committed in the courts of justice.
CHAPTER IX.
Of offences by falsely personating another in judiciary proceedings.
Art. 189. If any one, not being an officer of justice, shall fraudu-
lently pretend to be such, and in such assumed character shall commit
any assault, or false imprisonment, or receive or attempt to receive pro-
perty, he shall be imprisoned at hard labour not less than three, nor
more than six years, in addition to the punishment incurred by the
other offence he may commit.
Art. 190. If any one shall falsely PERSONATE ANOTHER, and in such
assumed character shall become bail, confess judgment, or do any other
act in the course of any proceeding in any suit or prosecution, he shall
be imprisoned at hard labour not less than two nor more than five
years, in addition to the punishment he may incur by any other offence.
he may commit in such assumed character.
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393
CHAPTER X.
Of perjury and false swearing.
Art. 191. Perjury is a falsehood, asserted verbally or in writing, de-
liberately and wilfully, relating to something present or past, under the
sanction of an oath, or such other affirmation as is or may be by law
inade equivalent to an oath, legally administered, under circumstances
in which an oath or affirmation is required by law, or is necessary for
the prosecution or defence of private right, or for the ends of public
justice. Perjury is punished by penitentiary imprisonment, not less
than three, nor more than seven years; by a forfeiture of all political
rights, and of civil rights of the first and third class. But if any one
by means of perjury shall cause another to be convicted of a crime,
he shall suffer the same punishment that is incurred by the commission
of the crime of which such person has been convicted by means of the
perjury.
Art. 192. Falsehood in this definition refers to the belief of the party
attesting; therefore if he believes what he swears to be false, and it
should happen to be true, he is as guilty of the offence as if he had
sworn that to be true which he knew to be false.
Art. 193. The declaration must be deliberate; a false statement made
inadvertently, or under agitation, or by mistake, is not perjury.
Art. 194. It must be with design to make the falsehood believed by
another, the party taking the oath knowing or believing it to be false;
and this design is presumed whenever the falsehood of the declaration
is proved.
Art. 195. The oath or affirmation must be administered in the manner
required by law, and by a magistrate, or other person duly authorized
to administer oaths in the matter or cause in which the oath was taken.
Art. 196. The declaration, to constitute perjury, must be of some-
thing present or past; a promissory oath, although broken, is not perjury.
An oath of office is one of this last description.
Art. 197. The occasion of taking the oath, in the description of the
offence, includes those taken in every stage of a judicial proceeding,
either civil or criminal, either in or out of court; and all declaratory
oaths required by special laws, whether they impose the penalty of
perjury or not.
Art. 198. As the falsehood must be wilful and deliberate to constitute
the crime; the assertion of any circumstance, so immaterial to the mat-
ter in relation to which the declaration is made, as reasonably to induce
a belief that it was not intended to conceal the truth or assert a false
hood, is not perjury; although the circumstance be not true.
Art. 199. It is not necessary to complete this offence, that any credit
should be given to the false declaration.
Art. 200. Whoever shall deliberately and wilfully, under oath, or af
firmation, (in cases where it is by law equivalent to an oath), legally
administered, declare a falsehood, by a voluntary declaration or affidavit,
which is neither required by law nor made in the course of any judicial
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proceeding, is guilty of false swearing, and shall be confined in close
custody not less than one nor more than six months; and the conviction
of such an offence may be produced as evidence against his CREDIT in
any court where he may be offered as a witness.
Art. 201. The punishment for the offence mentioned in the last pre-
ceding article is independent of any that may be inflicted for the publi-
cation of the affidavit, should it be a libel.
Art. 202. The term declaratory oath, or declaratory affidavit, in this
section, means an oath made to the truth of something present or past,
and is used in contradistinction to promissory oath, which is a stipula-
tion confirmed by oath, that some act shall be done or omitted, or some
event take place in future. The breach of this last description of oaths,
does not amount either to perjury or to false swearing, except as will be
hereafter provided in the case of officers of justice for duties done in
court.
Art. 203. Whoever shall designedly, by any MEANS whatever, induce
another to commit perjury, or to be guilty of false swearing, shall un-
dergo the same punishment as if he had committed the crime himself.
Art. 204. Whoever shall endeavour, by offering any INDUCEMENT or
persuasion whatever, to procure another to commit perjury, or to be
guilty of false swearing, shall be fined not less than fifty nor more than
three hundred dollars, and imprisoned in close custody not less than
thirty days, nor more than six months.
CHAPTER XI.
Offences against the judiciary power committed in a court of
justice.
Art. 205. If any one shall, during the session of any COURT OF JUSTICE,
in the presence of the court, by words or by making a clamour or noise,
wilfully obstruct the proceedings of such court, or shall refuse to obey
any legal order of such court made for the maintenance of order or to
preserve regularity of proceedings in court, it shall be lawful for the
said court to cause the offender to be removed by the proper officer of
justice from the building in which the sessions of such court are held ;
and if such offender shall persevere in returning to and disturbing said
court, it shall also be lawful for them to cause him to be imprisoned
during the time the court shall be in session during the same day; and
the party offending against this article, is guilty of a misdemeanor, and
shall be punished by fine not exceeding twenty dollars, and by impri-
sonment not exceeding three days.
Art. 206. If any person shall, either verbally in court, or in any
pleading or other writing addressed to the judges in any cause pending
in any court of justice, use any indecorous, contemptuous or insulting
expressions, to or of the court or the judges thereof, with intent to in-
sult the said court or any of the said judges, he shall be punished by
simple imprisonment not more than fifteen days, and by fine not exceed-
ing fifty dollars; and the fact of the intent, with which the words were
used, and also whether they were indecorous, contemptuous and in-
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395
The
sulting, shall be decided by the jury, who shall try the cause.
said punishment shall be doubled on a second conviction for an offence
under this article; and for a third, the party shall, in addition to the said
punishment, if an attorney or counsellor, be suspended for not less than
one nor more than four years from practising in the said court as attor-
ney or counsellor at law, or as attorney in fact.
Art. 207. If any one shall obstruct the proceedings of a court of jus-
tice by violence, or threats of violence, offered either to the judges,
jurors, witnesses, parties, or attorneys or counsellors, he shall be fined
in a sum not less than one hundred and not exceeding five hundred
dollars, and by imprisonment, in close custody, not less than ten days
nor more than six months; and if the offender be an attorney or coun-
sellor at law, he shall be suspended from practising in such court for
not less than one nor more than three years, either as attorney or
counsellor at law, or as attorney in fact.
Art. 208. Courts of justice have no power to inflict any punishment
for offences committed against their authority, other than those specially
provided for by this Code and the Code of Procedure. All proceedings
for offences, heretofore denominated contempts, are abolished. All
offences created by this chapter, shall be tried on indictment, or infor-
mation, in the usual form.
TITLE VI.
OF OFFENCES AGAINST PUBLIC TRANQUILLITY.
CHAPTER I.
Of unlawful assemblies and riots.
Art. 209. If any three or more persons shall ASSEMBLE with intent to
aid each other by violence, either to commit an offence, or illegally to
deprive any person of the enjoyment of a right, such assembly shall be
called an unlawful assembly, and those guilty thereof shall be fined not
less than fifty nor more than three hundred dollars, and shall be impri-
soned not less than three nor more than twelve months, in close custody.
Art. 210. If persons, assembled for either of the purposes mentioned
in the last preceding article, shall, by VIOLENCE, commit any illegal act,
they are guilty of a riot, and in addition to the punishment to which
they may be liable by reason of the illegal act they may commit, if it
be an offence, they may be suspended from their political rights for
three years, shall be fined not less than fifty nor more than five hun-
dred dollars, and imprisoned not less than three nor more than eighteen
months in close custody, for at least one half the time, or more, at the
discretion of the court.
Art. 211. If the purpose of the unlawful assembly be illegally to
oppose the collection of any taxes, tolls, imposts, or excises legally im-
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posed, or the execution of any law of the state, or any lawful sentence
of a court, or to effect the rescue of a prisoner legally arrested for any
crime, the punishment for that offence shall be increased one half.
Art. 212. If a riot be committed for either of the purposes set forth
in the last preceding article, the punishment hereinbefore imposed for
that offence shall be doubled.
Art. 213. If any person engaged in an unlawful assembly, before the
unlawful object of such meeting, or any other offence except such un-
lawful meeting, has been committed by them, or those with whom they
are combined, shall either voluntarily, or on being warned by a magis-
trate, retire therefrom, without the intent to return, he shall not be
prosecuted for being concerned in the unlawful assembly, or for any
riot or other offence of which any persons concerned in it may after-
wards be guilty, provided he do not return to the said assembly.
Art. 214. Any one person concerned in an unlawful assembly, may
be indicted and convicted before the others are arrested; but it is ne-
cessary to state in the indictment, and prove on the trial, that three or
more persons were assembled; if known, they must be described or
named; if unknown, it must be so alleged.
It is necessary to state, in an indictment for either of those offences,
the illegal act which was the object of the meeting, or which they pro-
ceeded to do if the assembly was originally for a lawful purpose.
Art. 215. If three or more persons assemble for a lawful purpose, and
they afterwards proceed to commit any act that would amount to a riot,
if it had been the original purpose of the meeting, all those who do not
retire when the change of purpose is known, are guilty of a riot.
;
Art. 216. If two or more persons engaged in an unlawful assembly or
riot are ARMED, the punishment of the person so arined shall be doubled
and of those who assisted in such assembly, when part were armed,
although they themselves were unarmed, shall be increased one half.
Art. 217. If any judge, military officer or executive officer, or officer
of justice, shall be engaged in an unlawful assembly or riot, his punish-
ment shall be doubled.
Art. 218. When proof shall be made to any magistrate, by the oath.
of two or more credible witnesses, of the existence of any unlawful as-
sembly or riot, consisting of more than twenty persons, it shall be the
duty of such magistrate to go to the place where the unlawful assembly
is, and he shall there proclaim the office which he holds, and order such
unlawful assembly to disperse; and that he may be the better known
and distinguished, he shall display a white flag; and if the offenders
shall, after being so warned, proceed to commit a riot, they shall be
imprisoned at hard labour, not less than one, nor more than three years,
in addition to the other punishment for any other offence of which they
may be guilty by such riot or illegal assembly.
Art. 219. Any one being in the said assembly at the time such order
was given, or having joined it afterwards, (provided this last have
notice of such order), who shall be found therein after the expiration of
half an hour, shall, if no other offence be committed, be imprisoned, in
close custody, not less than one nor more than six months, or fined not
less than fifty, nor more than three hundred dollars. And immediately
after the expiration of the said half hour, or before, if any other illegal
act be committed, it shall be lawful for any magistrate, or minister of
justice, to arrest any of those composing the said assembly who shall
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disobey such order, or to cause them to be arrested with or without
warrant; and for that purpose, any magistrate may call for the assist-
ance of any person who may be within three miles of the place where
the said unlawful assembly shall be, to aid him in the arrest of the
said offenders; and such arrest shall be made in the manner directed
by the Code of Procedure, in the chapter relative to Arrests.
Art. 220. If any free, able-bodied male person, above eighteen years
of age and under fifty, shall be called on to aid in arresting the offenders
in the manner directed by the last preceding article, and shall refuse or
neglect so to do, such person shall be fined fifty dollars.
Art. 221. Any assembly, for the purpose of witnessing a boxing
match, is an unlawful assembly.
If any boxing match takes place at such assembly, it is a riot, for
which the combatants, and each of those who lay a wager on the event
of such combat, shall be fined not less than ten, nor more than one
hundred dollars, or may be imprisoned not less than ten, nor more
than twenty days, in close custody, or both; and those who are guilty
of the riot, without laying a wager on the combat, shall be fined not
less than five, nor more than fifty dollars; or may be imprisoned ten
days in close custody.
CHAPTER II.
Of public disturbance.
Art. 222. Those are guilty of making a public disturbance, who,
without any such intent as would give to a meeting the character of an
unlawful assembly, shall, to the number of two or more, meet or assem-
ble in a tumultuous manner, in a public place, and by vociferation,
quarrelling, or fighting, disturb the inhabitants of the place in the pro-
secution of their lawful business, or in their necessary repose. Public
disturbers shall be fined not exceeding twenty dollars, or imprisoned
not exceeding ten days, or both.
Art. 223. All magistrates and officers of justice are required to arrest,
or cause to be arrested, persons guilty of this offence, on their own
view, or on complaint, with or without warrant.
Art. 224. No public meeting, for the purpose of exercising any politi-
cal or private right; no assembly for the purpose of legal recreation,
or the expression of dissatisfaction or approbation made in such assembly
in the usual manner, although it may disturb those in the vicinity, is
an offence under this chapter.
Art. 225. The police of places of public amusement continues under
the superintendence of the mayors, or other first magistrates of cities
and towns.
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TITLE VII.
OF OFFENCES AGAINST THE RIGHT OF SUFFRAGE,
CHAPTER 1.
2
Of bribery and undue influence.
Art. 226. Whoever shall offer or give a BRIBE to any elector, for the
purpose of influencing his vote at any PUBLIC ELECTION,
and any elector
entitled to vote at such election who shall receive such bribe, shall be
fined not less than one hundred, nor more than five hundred dollars,
shall forfeit all his political rights, and be confined in close custody not
less than six months, nor more than one year.
Art. 227. Whoever shall give or offer a bribe to any JUDGE or clerk
of any public election, or any executive officer attending the same, as
a consideration for some act done, or omitted to be done, or to be done
or omitted contrary to his official duty in relation to such election, shall
pay a fine not less than one hundred, nor more than five hundred dol-
lars, shall forfeit all political rights, and shall be confined in close cus-
tody not less than one, nor more than two years.
Art. 228. If any one shall offer or give a reward to any person what-
ever, for the purpose of inducing him to persuade, or by any other means
not amounting to bribery, to procure persons to vote at any PUBLIC
ELECTION, for or against any person, the person so giving or offering,
and he who shall receive such reward, shall forfeit not less than fifty,
nor more than one hundred dollars.
Art. 229. Whoever shall procure or endeavour to procure the vote of
any elector, or the influence of any person over other electors at any
public election, for himself or any candidate, by means of VIOLENCE,
threats of violence, or threats of withdrawing custom or dealing in
business or trade, or of enforcing the payment of a debt, or bringing a
suit or criminal prosecution, or any other threat of injury to be inflict-
ed by him or by his means, the person so offending, shall forfeit not
less than fifty, nor more than three hundred dollars, and be confined in
close custody, not less than one, nor more than six months, and shall
be suspended from the exercise of his political rights for four years.
CHAPTER II.
Of offences committed by the judges or other officers of elections.
Art. 230. If any judge or clerk of any public election, or executive
officer attending the same, shall knowingly make or consent to any
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false entry on the list of voters; put into the ballot box, or permit to
be so put in, any ballot not given by a voter; or take out of such box,
or permit to be so taken out, any ballot deposited therein, except in the
manner prescribed by law; or by any other act or omission, designed-
ly destroy, or change the ballots given by the electors; the offender
shall pay a fine of not less than five hundred, nor more than one thou-
sand dollars, forfeit his political rights, and be imprisoned in close con-
finement, not less than six months, nor more than one year.
Art. 231. Any such judge who shall proceed to any such election,
without having the ballot box locked and secured in the manner directed
by law; or who shall open and read, or consent to any other person
opening and reading any ballot given to him to deposit in the box at
such election, before it is put into the box, without the consent of the
voter giving the same, shall be fined one hundred dollars.
Art. 232. Any judge of a public election, who before the votes are
counted, shall dispose of, or deposit the ballot box, in a manner not
authorized by law; or shall at any time after the election has begun,
and before the ballots are counted, give the key of the ballot box with
which he is intrusted to any other, the person so offending shall pay
a fine of five hundred dollars.
Art. 233. When any one who offers to vote at any such election, shall
be objected to by an elector, as a person unqualified to vote, if any judge
of such election shall permit him to vote without producing proof of
such qualification, in the manner directed by law; or if any such judge
shall refuse the vote of any person, who shall comply with the requi-
sites prescribed by law to prove his qualifications, knowing him to be
entitled to vote, he shall forfeit for such offence, one hundred dollars,
and if the offence be committed for the purpose of favouring or injur-
ing the election of any candidate, shall moreover be suspended from
the exercise of his political rights, for five years.
Art. 234. If any judge, or clerk, or executive officer, shall designedly
omit to do any official act required by the law, or designedly do any
illegal act, in relation to any public election, by which act or omission
the votes taken at any such election in any city, parish or district, shall
be lost, or the electors thereof shall be deprived of their suffrages at
such election, or shall designedly do any act which shall render such
election void, he shall be fined not less than one hundred nor more
than five hundred dollars, shall forfeit his political rights, and shall be
confined in close custody not less than six months nor more than one year,
CHAPTER III.
Of violence and riots at elections, and of the protection of electors
from arrest.
Art. 235. It shall not be lawful for any military officer, or other per-
son, to order or bring, or keep any troops or armed men, at any place
within a mile of the place where any public election is held, on any
day during which the same shall be held, under the penalty of five hun-
dred dollars; unless it be for the purpose of quelling a riot or insur-
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rection, in the manner provided by law, or for the purpose of defence
in time of war, and if the offence shall be committed with intent to in-
fluence such election, he shall moreover be imprisoned not less than
thirty nor more than sixty days in close custody, and shall forfeit his
political rights. This article does not apply to troops of the United
States, usually stationed within a mile of the place of election, and
kept there during the same.
Art. 236. If any one shall, by illegal force, or threats of such force,
prevent or endeavour to prevent any elector from giving his vote; or
shall, at the place of election, commit any assault or battery on any
elector, he shall be fined not less than fifty nor more than two hundred
dollars, shall be imprisoned in close custody not less than thirty days.
nor more than six months, and shall be suspended from his right of
suffrage for two years.
Art. 237. If any riot be committed at any place of any public election
or within half a mile of such place, during the time that the polls are
open, the offender shall, in addition to the punishment imposed by law
for a riot, also suffer imprisonment, in close custody, for not less than
thirty nor more than sixty days; and if the riot shall have been made
for the purpose of influencing the election, shall be suspended from the
right of suffrage for two years.
Art. 238. No elector shall be arrested at any civil suit, or on any
warrant, except for a crime or a breach of the peace, or in order to ob-
tain surety of the peace, during any day on which a public election is
held, or while going to or returning from such election; and any exe-
cutive officer of justice, or other person, making or causing such arrest,
contrary to this article, knowing the person arrested to be an elector,
shall be fined not less than fifty nor more than two hundred dollars.
TITLE VIII.
OF OFFENCES AGAINST THE LIBERTY OF THE PRESS.
Art. 239. The constitution of this state having declared, that "print-
ing presses shall be free to every person who undertakes to examine the
proceedings of the legislature or any branch of the government," and
that the free communication of thoughts and opinions is one of the
invaluable rights of man," and that "every citizen may freely
speak, write, and print, on any subject, being responsible for the abuse
of that liberty," it is declared to be a misdemeanor for any one by
violence, or threats of violence, or threats of any injury to person, pro-
perty or credit, to prevent, or endeavour to prevent any person from
exercising any of the rights asserted in the parts of the constitution
above recited, and the offender shall pay a fine of not less than fifty nor
more than five hundred dollars.
Art. 240. If any member of the general assembly, or any judge or
judicial or executive officer, shall be guilty of the offences created by the
last preceding article, in order to prevent an investigation of his official
conduct, or that of the branch of the government to which he belongs :
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CODE OF CRIMES AND PUNISHMENTS.
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Or, if any judge or judicial or executive officer shall, by the exercise
of any act of his office or the threat thereof, prevent, or endeavour to
prevent any person from exercising any of the rights declared in the
parts of the constitution above recited, he shall be fined not less than
three hundred nor more than one thousand dollars, shall suffer impri-
sonment not less than sixty days nor more than six months, in simple
imprisonment or close custody, at the discretion of the court, and be
suspended for four years from the exercise of his political rights.
Art. 241. Nothing in this chapter contained shall render it unlawful
for any person, who is apprehensive that a libel is about to be publish-
ed, or that any literary property is about to be invaded by any publi-
cation, from endeavouring to prevent it by threats of a suit or prosecu-
tion, or from commencing such suit or prosecution for any such libel,
should it, be published, or for such invasion of literary property, should
it be made.
Art. 242. The constitution having declared, that no law shall ever be
made to restrain the right to examine the proceedings of the legislature,
or any branch of the government, any judicial or executive officer or
other person, who, under pretence or colour of any existing law, or
laws that may hereafter be passed, shall prevent, restrain, or attempt.
to restrain or prevent the exercise of the right asserted in that part of
the constitution above recited in this article, shall be fined not less
than three hundred nor more than one thousand dollars.
1
Art. 243. If any court, judge or other officer, shall enjoin, restrain
or prevent the printing and publishing of any WRITING whatever,
under the allegation, whether true or false, that such writing contains
a libel or seditious words, or under any other pretext, or for any other
reason than is contained in the next article, the judges of such court
assenting to such order, and the judge (if done out of court) or other
officer, offending against this article, shall severally be fined not less
than five hundred nor more than one thousand dollars, and shall be
suspended from their political rights for two years.
Art. 244. It is no infringement of the last article to grant an injunc-
tion against the publication of any literary work, on the application of a
person who shall satisfy the court or judge granting the injunction,
that he is the author or proprietor of the work intended to be published,
and that the publication will be injurious to his rights; nor shall it be
considered as a breach of the said article for a court of justice, in which
any one shall be convicted of publishing a libel, to require security in
the manner directed by the chapter of this code concerning libels, nor
for a magistrate to make an admonition in the manner provided by the
Code of Procedure against the publication of a libel or publication
against decency.
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TITLE IX.
OF OFFENCES AFFECTING PUBLIC RECORDS.
Art. 245. If any one shall FORGE, or FRAUDULENTLY carry away,
deface or destroy any PUBLIC RECORD, or shall FORGE any official CER-
TIFICATE of any OFFICER having the custody of any public records of
registry, he shall be imprisoned at hard labour not less than seven nor
more than fifteen years, and shall forfeit his political rights.
Art. 246. To FORGE, in the sense in which that word is employed in
this chapter, is to make a false record or official certificate, or without
authority to alter a true one in such a manner as that, if such false re-
cord were true or such alteration were legally made, some public or
private right, or the condition of some individual, or the rights or
immunities of some society, corporation, or general description of in-
dividuals, or some purpose of public utility, would be injured, altered
or destroyed, or some right, immunity, privilege, condition or pro-
perty would be vested, by such false or altered record.
Art. 247. The public and private rights mentioned in the last preced-
ing article, are all those that are protected by the penal code, or for
an injury to which a private suit is given by the civil code.
Art. 248. If any officer intrusted with the custody of PUBLIC RECORDS,
shall commit any FORGERY of or upon such records, shall intentionally
destroy or deface them, or conceal or carry them away, so that persons
interested therein cannot have access to them, or shall advise or con-
sent to such forgery, destruction, concealment or carrying away: or,
Shall fraudulently make and certify any entry or other act on
such records in the name of one who was not present, or did not con-
sent to such act: or,
Shall place any ACT, either AUTHENTIC or under PRIVATE SIGNA-
TURE, on such register or record, under a date at which it was not re-
gistered or recorded, with intent to take away a right, give an illegal
advantage to any one: or,
Shall knowingly permit any one falsely to PERSONATE another in
the execution of any act entered or to be entered on any such register
or record; he shall be imprisoned at hard labour not less than seven
nor more than fifteen years.
Art. 249. If any such officer as is described in the last preceding ar-
ticle shall, undesignedly, but through want of proper care, suffer the
records intrusted to him, or any part of them, to be altered, defaced,
taken away or lost; or shall negligently do any act, by virtue or under
colour of his office, which he is not authorized to do, or omit to do some
official act which he ought to do, by either of which acts or omissions
any one is INJURED in his property, condition or reputation, he shall be
fined not less than one hundred nor more than four hundred dollars.
Art. 250. If any notary or other officer, authorized by law to reduce.
to writing any authentic acts, or receive and record any acts under pri-
vate signature, shall falsely, in his official capacity, certify any thing
to be true which is false, whereby any one is injured in his property,
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403
condition or reputation, he shall be fined not less than one hundred nor
more than four hundred dollars, shall be imprisoned in close custody
not less than sixty days nor more than one year.
Art. 251. If the offence described in the last preceding article be
FRAUDULENTLY committed, the punishment, in addition to the fine,
shall be imprisonment at hard labour not less than seven nor more
than fifteen years.
Art. 252. If any one shall use any record of any act, so forged, or
fraudulently entered, made, registered or recorded, or any such false
declaration, as is described in this chapter, either by offering the same.
in a court of justice, or endeavouring by any other means to procure
any advantage therefrom, knowing such act to be forged, or fraudu-
lently entered or recorded, or such certificate to be false; he shall be
fined not less than six hundred nor more than two thousand dollars,
and imprisoned at hard labour not less than seven nor more than fif-
teen years.
TITLE X.
OF OFFENCES AGAINST THE CURRENT COIN AND PUBLIC SECURITIES.
CHAPTER I.
Of offences against the current coin of the state.
Art. 253. Whoever shall counterfeit any GOLD OR SILVER COIN, whe-
ther such coin be of the United States, or of any other government; or,
Whoever shall PASS, or offer to pass any such counterfeit coin,
knowing it to be counterfeit ;
Shall be imprisoned at hard labour not less than seven nor more
than fifteen years.
Art. 254. Whoever, with the intention of committing the crime of
counterfeiting, or of aiding therein, shall have in his possession any
die, or other instrument, such as is usually employed solely for the
coinage of money, or shall make or repair any such die or other instru-
ment, or shall prepare, or have in his possession and conceal any base
metal prepared for coinage, shall be imprisoned at hard labour not less
than two nor more than four years; provided, that if any of the acts
specified in this article shall be accompanied by circumstances which
would render the accused liable, as an accomplice, for either of the crimes
designated in the first article of this chapter, he may be prosecuted for
such offence.
Art. 255. To counterfeit, under the provisions of this section, means,
to make in the semblance of a true gold or silver coin, one having in
its composition a less proportion of the precious metal, of which the
true coin intended to be imitated is composed, than is contained in such
true coin, with intent that the same should be passed as true, either in
the United States or elsewhere. To alter any coin of a lower value,
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with the like intent, so as to make it resemble one of a higher value, is
also a counterfeit. It is not necessary, to constitute the offence, that
the resemblance should be perfect.
Art. 256. The gold or silver coins mentioned in this chapter mean
any pieces of gold or silver, or of which gold or silver is the principal
component part, and which pass as money in the United States, or in
any foreign nation, although such pieces may not be made current by
any law of the United States.
Art. 257. Whoever shall have in his possession any counterfeited
gold or silver coins, with intent to pass them as true, or to cause them
to be passed either in the United States or any other nation, he shall
be imprisoned at hard labour not less than two nor more than four
years.
Art. 258. If any one shall, with intent to profit, diminish the weight
of any gold or silver coin, and shall afterwards pass it for the same
value it had before it was so diminished, or shall send or carry it to be so
passed to any other place, whether in the United States or elsewhere,
he shall be fined not less than two hundred, nor more than five hun-
dred dollars, and be imprisoned not less than one nor more than three
years.
Art. 259. To constitute the crime of PASSING, under the provisions of
this section, it is not necessary that the counterfeit coin should have
been given at the full value of the true coin of the same denomination;
the crime is complete by delivering the counterfeit coin, knowing it to
be counterfeit, to another, if such delivery is made either for the pur-
pose of defrauding the person to whom it is delivered, or for the pur-
pose of enabling him to deceive others.
Art. 260. The general provisions in this code, relative to attempts to
commit offences, and to accomplices and accessaries, apply to the of
fences mentioned in this chapter.
CHAPTER II,
Of offences against the public securities.
Art. 261. All offences coming under this head are provided for in the
chapter concerning offences against the public revenue, or in that con-
cerning offences affecting written contracts.
TITLE XI.
OF OFFENCES AFFECTING THE PUBLIC REVENUE.
Art. 262. If any OFFICER, or other person legally empowered to receive
any money, or SECURITY FOR MONEY, for the state, or for any public cor-
poration, shall illegally appropriate any such moneys or securities for
CODE OF CRIMES AND PUNISHMENTS.
405
money to his own use, or to the use of any other person, and shall, by
rendering false accounts, or producing false vouchers, or in any other
manner endeavour to conceal such illegal appropriation, with intent to
defraud the state or the public corporation, to whom the said moneys
belonged, of the same, or any part thereof, he shall pay a fine equal to
double the yearly emolument of his office, shall be imprisoned not less
than two nor more than six months, and shall forfeit his political rights.
Art. 263. No public officer or other person who is or shall be au-
thorized to collect or receive moneys, or securities for the payment of
money for the state or any public corporation, shall appropriate the
same, or any part thereof, to his own use, or to the use of any other
person, even although he may intend to restore the same; and whoever
shall offend against this article, if he do not pay the sum so illegally
appropriated within three days after demand made by a person legally
authorized for that purpose, shall pay a fine equal to double the amount
which he shall neglect to pay, and be suspended from his political
rights for not less than two nor more than four years.
Art. 264. Although any person who may offend against the provisions
of the last preceding article, shall, before the expiration of the three days
after demand, or even before any demand, replace or repay the money
or security so illegally appropriated, he shall pay a fine equal to the
amount of the said money, or the value of the said security.
Art. 265. In order to render offences against the preceding articles
more difficult, and to detect them when they occur, every such receiver
of moneys or public securities, who shall receive any sum or sums of
money, or any such security, whenever and as often as they in the
whole shall amount to the value of three hundred dollars, shall, within
three days after such receipt, either pay or deliver the same to the offi-
cer appointed by law to receive the same, or deposite the same in some
incorporated bank, if any be within three leagues of the place of such
receiver's abode, to his credit, in the capacity or office in which he
shall receive the same: and such money or security shall not be drawn
out but by a draft or order specifying to whom and for what purpose it
is to be paid. And any such officer or other person shall, for any of-
fence against this article, pay a fine not less than two hundred nor more
than six hundred dollars.
Art. 266. If the receiver of any such moneys or securities reside more
than three leagues from the place where such bank is kept, he shall
have fifteen days to make the deposite, payment or delivery, mentioned
in the last preceding article; and in cases where greater distance than
twenty leagues, or difficulty of travelling may render it necessary, in
the opinion of the treasurer of the state, to enlarge such time in any
particular case, he may at his discretion extend it so as not to exceed
thirty days.
Art. 267. If any person, employed to receive taxes or other moneys
due to the state or any public corporation, shall EXTORT or attempt to
extort, from any one a larger sum than is due; or shall demand or re-
ceive any sum of money, emolument, service or favour, as a considera-
tion for granting any delay in the collection of such dues, or for doing
or omitting to do any act whatever in relation to the collection of such
money, other than such emolument as may be allowed by law, he shall
pay a fine not less than one-half nor more than the whole of the amount
of his yearly emoluments, be dismissed from his office, and rendered
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incapable of being re-appointed or re-elected to any public office for
not less than one nor more than two years.
Art. 268. If any one shall by force attempt to prevent any officer or
other person, authorized to enforce the payment of any tax or other
debt due to the state, or to any public corporation, from performing
the duties required of him by law, relative to the collection of such
tax or debt; or shall by force, or threats of force, actually prevent any
such officer or person above described from performing such duties-he
shall be fined in a sum double to that of which he prevented or at-
tempted to prevent the collection, and shall be imprisoned not less
than ten nor more than sixty days, in addition to the other penalties
which may be incurred for any act of violence committed in the course
of the opposition forbidden by this article.
TITLE XII.
OF OFFENCES WHICH AFFECT COMMERCE AND MANUFACTURES.
CHAPTER I.
Of offences which affect foreign commerce.
Art. 269. If any one shall export from this state, or ship for the pur-
pose of exportation, any article of commerce which, by the laws now
in force are, or by any laws hereafter to be passed may be, required to
be inspected by a public inspector, without having caused such article
to be inspected, according to the direction of such laws, he shall be
fined one hundred dollars.
Art. 270. If any one shall counterfeit the mark, or brand or stamp,
directed by any such law to be put on any article of commerce, or on
the cask or package containing the same, he shall be fined not less than
one hundred nor more than three hundred dollars, and be imprisoned
at hard labour not less than one nor more than three years.
Art. 271. If any one shall, with intent to defraud, put into any hogs-
head, barrel, or other cask, or in any bale, box or package, containing
merchandise usually sold by weight, any article whatever of less value
than the merchandise with which such cask, bale, box or package is ap-
parently filled; or shall sell or barter, or give in payment, or expose for
sale, or ship for exportation, such cask or bale, or package of merchan-
dise, with any such article of inferior value concealed therein, with
intent to DEFRAUD; he shall pay a fine not less than five hundred nor
more than one thousand dollars, and be imprisoned at hard labour not
less than one nor more than three years.
Art. 272. If any one, being a citizen of or a person DOMESTICATED in
this state, shall, on the high seas; or if any person whatever shall, within
the limits of this state, injure or DESTROY any VESSEL of which such per-
CODE OF CRIMES AND PUNISHMENTS.
407
son is the owner, part owner, or freighter, or on board of which he
shall be employed as master, supercargo, under officer, seaman, or in
any other capacity whatsoever, with intent to defraud or injure the
owner of such vessel, or of the cargo on board, or the underwriters on
such vessel or cargo, or any part thereof, or any other person interested
in such vessel or cargo, or in the voyage, or the freight or other profits
of such ship or vessel; he shall be imprisoned at hard labour not less
than six nor more than fourteen years.
Nothing in this article applies to any act that would be piracy by the
laws of the United States.
Art. 273. If any one shall cause insurance to be made in this state on
any merchandise, represented as shipped, or about to be shipped, at
any place, whether within this state or elsewhere; or shall cause such
insurance to be made at some place not within this state, on goods said
to be shipped or about to be shipped within this state, and shall, with
intent to defraud the insurer, ship articles of less value and different
from those insured, or, if of the same kind, being less than one-half of
the value of the articles insured, pretending that the articles so shipped
are of the kind or of the quality with those insured; he shall be fined
not less than one hundred nor more than five hundred doliars, and shall
be imprisoned not less than sixty days nor more than six months in
close custody.
Art. 274. Any person, not a citizen of or resident in this state, is
guilty of an attempt to commit either of the offences described in the
preceding articles, who shall make any agreement for the commission
thereof within this state, and shall Do any ACT PREPARATORY thereto,
whether the act be done in this state or elsewhere; or who shall make
such agreement out of the state, and do the preparatory act within this
state. A citizen of or a resident in this state is guilty of such attempt,
if he make the agreement or does the preparatory act, above described,
any where.
Art. 275. No person shall be punished under either of the two last
preceding articles who shall have been tried and acquitted, or punished,
on an accusation for the same offence either in any court of the United
States, of either of the United States, or of any foreign country having
cognizance of the offence.
CHAPTER II.
Of offences against the laws regulating seamen in the merchant
service, and the police of the port.
Art. 276. If any keeper of a tavern, or lodging or boarding-house,
shall lodge, entertain or conceal any seaman who has deserted from
any merchant vessel, in any port of this state, within one month after
such desertion, and knowing that he had so deserted, he shall forfeit
one hundred dollars; and for a second offence, in addition to such fine,
be imprisoned for thirty days.
Art. 277. Any master of any ship or vessel who shall in or at any
port of this state, ship any seaman, who has not produced a discharge
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in the form required by law from the master of the vessel with whom
he last sailed, in the cases in which such discharge is by law required,
shall pay a fine of fifty dollars.
Art. 278. The police of the ports of this state is regulated by ordi-
nances, passed by the corporations of the cities and places where such
ports are situated.
CHAPTER III
Offalse weights and measures.
Art. 279. Whoever shall use a false balance, weight or measure, in the
weighing or measuring of any thing whatever that shall be purchased,
sold, bartered, or shipped or delivered for sale or barter, or that shall
be pledged or given in payment, knowing such balance, weight or
measure to be false, and with intent to defraud, shall be fined not less
than twenty nor more than two hundred dollars, and shall be impri-
soned in close custody not less than ten nor more than ninety days.
Art. 280. The false weights and measures intended by the last pre-
ceding article, are such as shall not be conformable to the standard of
weights and measures of length or capacity which are or may be estab-
lished by law; the false balance thereby intended is any machine what-
ever used for ascertaining the weight of any personal property, which
is so constructed as to make the article weighed appear to have more
or less than the real weight.
Art. 281. Any person who shall sell bread or meat by a false weight or
balance, shall incur double the punishment directed by the first article
of this chapter.
Art. 282. The magistrate, granting the warrant or arrest for this
offence, shall also direct the seizure of the false weights, balances or
measures; and if the party be convicted, or they be found to be false,
they shall be broken, or otherwise destroyed.
CHAPTER IV.
Of false marks.
Art. 283. If any one shall falsely alter any stamp, brand or mark, on
any cask, package, box or bale, containing merchandise or produce,
made by a public officer appointed for that purpose, in order to denote
the quality, weight or quantity of the contents thereof, with intent to
DEFRAUD, he shall be fined not less than two hundred nor more than
five hundred dollars, and shall be imprisoned at hard labour not less
than one nor more than three years.
Art. 284. Any one who shall counterfeit any mark, stamp or brand,
intended to imitate one, such as is described in the last preceding
CODE OF CRIMES AND PUNISHMENTS.
409
article, with intent to defraud, shall incur the same punishment as is
directed by the said article.
Art. 285. Any one who, with a fraudulent intent, shall use any cask,
package, box or bale, so marked, stamped or branded, for the sale of
merchandise, of inferior quality, or less in quantity or weight, than is
denoted by such mark, stamp or brand, shall incur one-half the punish-
ment designated by the last preceding article.
CHAPTER V.
Of offences affecting the credit of written instruments.
Art. 286. Whoever shall be guilty of the crime of forgery, shall be
imprisoned at hard labour not less than seven nor more than fifteen
years, and shall forfeit his political and civil rights.
Art. 287. He is guilty of forgery, who, without lawful authority, and
with intent to injure or defraud, shall either make a false INSTRUMENT
in writing, purporting to be the ACT of another, or alter an instrument
in writing then already in existence, by whomsoever made, in such a
manner that the false instrument so made (if the same were true), or
the alteration in the true instrument (if such alteration had been legally
made), would have created, increased, defeated, discharged, or dimin-
ished, any PECUNIARY OBLIGATION, or would have transferred or in any
manner have affected any PROPERTY whatever.
Art. 288. He is guilty of making, under the last preceding article,
who, knowing the illegal purpose for which it is intended, shall write,
or cause to be written, the SIGNATURE, or the whole or any part of the
forged instrument. Therefore several persons may be each guilty of
making the same forged instrument.
Art. 289. He who, under a void authority, but which he shall sup-
pose good, shall make an instrument in writing in the name of another,
is not guilty of making a false instrument, although it may be made
without lawful authority. But if any one, without a legal authority, or
without an authority which he shall have good reason to believe to be
a legal one, shall make any writing over a blank signature, or on the
back of a paper containing a blank signature of another person, such
writing is a false instrument in writing, and if the other parts of the
definition concur, is forgery.
It
Art. 290. The words, "instrument in writing," comprehend every
writing purporting to testify the will or intent of the party whose act
it purports to be, whether of RECORD by AUTHENTIC ACT, under seal,
or PRIVATE SIGNATURE, or in whatever form it may be couched.
must be on paper, vellum, or parchment, or on some substance made to
resemble one of them, and it comes within the definition, whether the
words be traced with a pen, or stamped, or made by any other device
to resemble a manuscript. An instrument, partly printed and partly
written, is a written instrument. But if the whole, including the sig-
nature, be printed with types or plates, not made to resemble manu-
script, it is not a written instrument, as that term is used in this chapter.
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Art. 291. A name, or commercial firm, or the style of a corporation,
without any other writing, is an instrument, when made for the pur-
pose of conveying, creating, or destroying an interest.
Art. 292. In order to constitute the making a false instrument, it must
purport to be the act of another. Therefore no one can be found guilty
of forgery for making an instrument signed by himself, or by his
authority, in his true name. Such act, when done with a fraudulent
intent, is a different offence, hereinafter provided for.
Art. 293. The word "another," in the definition of the crime of for-
gery, includes the United States, each of the states and territories of
the union, and all the several branches of the governments of either
of them, including this state; all public or private bodies, politic and
corporate; all partnerships in trade; all courts; all officers, public or
private, in their official capacities; and all persons whatever, whether
real or fictitious, except the person making the forgery, as is provided
in the last preceding article.
Art. 294. The word "whomsoever," in the said definition, as applied
to the person by whom the altered instrument was originally made, is
used in its most extensive sense, and includes not only all those men-
tioned in the last preceding article, but (in cases where the instrument
at the time of making the alteration was the property of another) it in-
cludes also the person whose act it purports to be.
Art. 295. The word "alter," in the said definition, signifies not only
erasing or obliterating some words, letters, or figures, or extracting the
writing altogether, but the substituting other words, letters, or figures,
for those erased, obliterated, or extracted, and also the adding any other
words, letters, or figures, to the original instrument, or making any
change therein that shall have any of the effects pointed out in the said
definition.
Art. 296. The words, "if the same were true," in the said definition,
in describing the effect of an instrument falsely made, apply as well to
the person whose act the instrument purports to be, as to the instrument
itself; therefore, although the writing be made in a fictitious name, it
is forgery, if the instrument would have had any of the effects detailed
in the said definition, in case it had been made by a real person of the
same name, or description, and if the act be done with a fraudulent intent.
Art. 297. The words, "PECUNIARY OBLIGATION," used in the said
definition there, and throughout this system, mean not only such as
have money for their object, but every obligation for the breach of
which damages might be legally, equitably, or justly demanded.
Art. 298. The words, which would have transferred, or in any
manner have affected any property whatever," are used in the most ex-
tensive sense. All property, REAL OF PERSONAL is included, as those
terms are defined in this system; and the transfer or affecting such pro-
perty, includes every species of disposition, whether to take effect.
immediately, or in future, on condition, or absolutely, by sale, delivery,
will, donation, exchange, pledge, mortgage, release, discharge, or any
other act that supposes a right to dispose of, or change the condition of
said property.
Art. 299. The limitation, at the beginning of the said definition, ist
strictly to be adhered to: no act is a forgery, unless done with an intent
either to injure or defraud.
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411
Art. 300. The injury mentioned in the last preceding article, means
injury affecting one in his PROPERTY, REAL, PERSONAL or mixed, corporeal
or incorporeal, not an injury to person or reputation; false writings,
having the latter tendency, are provided for in another part of this code.
Art. 301. No design of refunding the money, or restoring the proper-
ty received, or of preventing or compensating any damage or loss that
might be occasioned by any of the offences described in this chapter,
shall avoid the presumption of fraud created by the acts constituting
those offences: but such design, if actually executed before any dis-
covery of the crime, shall diminish its punishment one-half.
Art. 302. If any one shall make any written instrument in his own
name, intended to create, increase, discharge, defeat or diminish any
pecuniary obligation or transfer, or affect any property whatever, and
shall put a false date to the same with intent to injure or defraud-he
shall be fined not less than two hundred nor more than five hundred
dollars, and shall suffer imprisonment at hard labour not less than two
nor more than six years.
Art. 303. If any one shall, with intent to injure or DEFRAUD, make
any instrument in his own name, intended to create, increase, discharge
or diminish any pecuniary obligation, or to transfer or affect any pro-
perty whatsoever, and shall UTTER OF PASS it, under the pretence that it
is the act of another who bears the same name-he shall be fined not
less than two hundred nor more than five hundred dollars, and con-
fined at hard labour not less than three nor more than six years.
Art. 304. All the terms of the two last preceding articles, which are
contained in the definition of forgery in the second article of this chap-
ter, are to be understood in the same sense in which they are used in
the said definition.
Art. 305. If any one, having in his power a paper containing the true
signature of another, shall, on the other side of the same, make a pro-
missory note or bill of exchange in his own name, so as to make the
said signature appear as an indorsement on such bill or note, with in-
tent to defraud-he shall suffer the punishment assigned to such as are
guilty of forgery.
Art. 306. Any one who shall, with intent to DEFRAUD, UTTER as TRUE,
or PASS, any forged instrument in writing, or any other instrument in
writing, the making of which is by this section made an offence, know-
ing such instrument to be forged, or made contrary to the provisions of
this section, shall suffer the same punishment that is assigned to the
offence of forging or making the same.
Art. 307. Whoever shall, in this state, engrave any plate, or prepare
any implements, or materials, for the purpose of their being employed
in the forging any notes of any bank, whether this bank be in or out
of this state, or whether such bank be incorporated or not, and know-
ing such purpose, and with intent to defraud; or shall have in his
possession any such plate, implements or materials made or prepared
for such purpose, knowing the same, and with intent that they shall
be used in the forging of any such notes-he shall be imprisoned at
hard labour not less than one nor more than three years.
Art. 308. Whoever shall have in his possession any forged instru-
ment in writing, or any instrument, the making of which is created an
offence by this code, knowing the same to be forged, or made con-
trary to the provisions of this code, with intent fraudulently to utter
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or to pass the same-shall be imprisoned at hard labour not less than
one nor more than three years.
Art. 309. If any one shall, with intent to defraud, either by falsely read-
ing, or falsely interpreting any instrument in writing; or by misre
presenting its contents, induce any one, who, either from ignorance or
infirmity, is incapable of reading an instrument in writing, or who, if
he can read, does not understand the language in which it is written,
to sign such instrument as his act, or give such assent to it as would,
if there had been no error, make it his act; by the means of which
false reading, false interpretation or misrepresenting, any PECUNIARY
OBLIGATION purports to be created, increased, discharged or diminished,
on the part of the person signing the same, or any of his property
whatever, purports to be transferred or in any manner affected-the
person so offending shall be imprisoned at hard labour not less than
one nor more than three years.
Art. 310. If any one, with intent to defraud, shall induce another to
sign any such instrument as is described in the last preceding article,
by falsely and without the knowledge of such other, substituting it for
another instrument, materially different therefrom, which the said per-
son intended to sign-the person so offending shall be imprisoned at
hard labour not less than one nor more than three years.
Art. 311. If either of the offences described in the two last preceding
articles shall be committed by a public officer, whose duty it is to take
or to record public acts, or by any counsellor or attorney at law, the
term of imprisonment shall be doubled, and he shall forfeit his political
rights.
Art. 312. If any one shall falsely personate another, whether bear-
ing the same name or not, and in such assumed character or name
shall give authority to a notary or any other person to sign such as-
sumed name to any act, or to insert it therein, or to do any other thing
implying a legal assent to any act, which, if it were the act of the
party so personated, would have created, or increased, diminished or
discharged, any pecuniary obligation, or transferred, or in any wise
affected any property-he shall be imprisoned at hard labour not less
than seven nor more than fifteen years.
CHAPTER VI.
Of fraudulent insolvencies.
Art. 313. Whoever shall institute any proceedings in any court of jus-
tice for the purpose of obtaining relief, under the laws now in force for
giving relief in case of insolvency, for granting a respite, for making a
cession of goods, or for giving relief from imprisonment for debt: or
under any other laws that may be passed for any of the purposes above
mentioned, and shall in the course of such proceeding, with intent to
defraud, make a false schedule or account of his credits, property or
debts, and exhibit the same in such court as true, or shall fraudulently
conceal or destroy his books of accounts, or papers relative to his es-
state, in cases where by law he is bound to produce the same for the
CODE OF CRIMES AND PUNISHMENTS.
413
use or inspection of his creditors, he shall suffer imprisonment for not
less than two nor more than four years at hard labour.
Art. 314. The filing of the said schedule or account with the clerk
of a court of justice, is exhibiting the same, under the above article.
Art. 315. It is a false schedule or account under the said article,
1. If the party making the same shall fraudulently omit to insert on
the said schedule any property, REAL or PERSONAL, to which he is en-
titled, and which by law ought to be placed on the said schedule or
account, of the value of ten dollars or upwards.
2. If he shall place on the account of his debts any sum as due from
him which he does not owe, for the purpose of defrauding his true cre-
ditors.
But the mere omission of any property on the schedule, shall not
make the party liable, unless, from the circumstances of the case, it
appear that it was done with design, and in order to defraud.
Art. 316. Any one who, not having property of sufficient value to
pay his debts, shall make any simulated conveyance, mortgage or
other disposition of any part of his property for his own use or the use
of his family, and in order to prevent the same from becoming liable
to the payment of his debts, shall be imprisoned for not less than sixty
days nor more than six months, and shall be suspended from the exer-
cise of his civil rights of the first class, and of his political rights for
four years; and the imprisonment, or any part of it, may be in close
custody.
Art. 317. A simulated conveyance, mortgage or disposition, is one
sufficient in form for the alienation or affecting of the property, but
made without consideration, or for an inadequate consideration, and
under a secret understanding between the parties that it shall operate
for the benefit of the person making the same, either by a reconvey-
ance afterwards to be made, or by a destruction or redelivery of the
instrument by which it was conveyed or affected, if it be property
requiring a written conveyance, or of the property itself, or by hold-
ing or conveying the same to his use, or that of his wife or any rela-
tion in the ascending or descending line.
Art. 318. Any person who shall receive any such simulated convey-
ance, mortgage or disposition for the purposes aforesaid, knowing the
said purpose, shall pay a fine equal to the full value of the property
so intended to be conveyed, or the amount for which it was intended
to be affected, to be ascertained by three appraisers appointed by the
court, and sworn to make a true appraisement.
Art. 319. The word "disposition," in the three last articles, means
every species of contract by which property may be subjected to any
alien or onerous condition, whether by mortgage, pledge or otherwise.
Art. 320. Any one who, not having sufficient property to pay his
just debts, shall voluntarily suffer a judgment to be entered in favour
of any one, that shall bind or encumber any real property, or on which
any personal property shall be seized, for a sum not due, or without
consideration, or for an inadequate consideration, shall convey, or
mortgage or affect by any onerous condition any of his property, or
for a larger sum than is really due, with intent to defraud his credi-
tors, or some one or more of them, shall be imprisoned not less than
sixty days nor more than six months, shall be suspended from the ex-
ercise of his political and of his civil rights of the first class for four
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years, and the imprisonment may in the whole or in part be in close
custody.
Art. 321. The person who shall, collusively with such debtor, re-
cover such judgment, shall be fined in a sum equal to the amount of
such judgment, and he who knowing the intent of such conveyance,
mortgage or onerous disposition, shall receive the same, shall be fined
in a sum equal to the value of the property if conveyed, or the amount
of the incumbrance if only mortgaged or burthened.
Art. 322. All the dispositions of the six last preceding articles take
effect only in cases where the inability to pay debts appears by a
forced or voluntary cession of property, or petition for a respite, or a
discussion of all the property of the debtor.
TITLE XIII.
OF OFFENCES AFFECTING PUBLIC PROPERTY.
Art. 323. All the provisions for the protection of the property of in-
dividuals against fraudulent or malicious injury, apply to the property
of the state, and of public and private corporations.
TITLE XIV.
OF OFFENCES AFFECTING THE PUBLIC ROADS, EMBANKMENTS, Bridges, naviGA-
BLE WATERS, AND OTHER PROPERTY HELD BY THE SOVEREIGN POWER FOR
THE COMMON USE.
GENERAL PROVISION.
Art. 324. The ordinances which the juries of police in the different
parishes and the public corporations in the cities and towns are au-
thorized to make, contain the regulations of police for the making and
enlarging the embankments or levees, roads, bridges, streets, and public
squares, and the penalties which are incurred by disobeying them.
CHAPTER I.
Of the levees and embankments of rivers.
Art. 325. If any one shall maliciously break down any levee or em-
bankment made to confine the waters of any river or bayou, he shall be
CODE OF CRIMES AND PUNISHMENTS.
415
fined not less than fifty, nor more than five hundred dollars, or impri-
soned not less than one month nor more than one year, or both.
Art. 326. Every breach in such levee or embankment shall be deem-
ed to be maliciously made, if it shall be attended with any injury to the
property of another, and if it be done in a manner or for a purpose for-
bidden by the ordinances of police.
CHAPTER II.
Of the roads, bridges, and navigable waters.
Art. 327. Whoever shall make any embankment, wharf, or other con-
struction in the bed of any navigable river, bayou, or lake, that shall
impede the navigation thereof, or that shall not be allowed by the legal
ordinances of police, of the police juries in the parish in which it is
made, shall be fined not less than fifty nor more than five hundred
dollars.
Art. 328. Whoever shall erect any fence or building, or dig any ditch,
or throw up any mound of earth in any street or public road or square,
or do any other act that shall obstruct the public use thereof, or shall
unlawfully destroy any bridge erected thereon, shall be fined not less
than five, nor more than one hundred dollars.
Art. 329. Whoever shall erect on the space set apart by the police
regulations for a tow path, along any navigable waters, or on the levee
or embankment of the same, or on its banks, any building, enclosure,
or other construction, or any other works whatever, that shall prevent
the public use thereof, or render it less convenient, unless thereunto
authorized in the manner directed by law, or by the ordinances of
police, shall be fined not less than fifty nor more than five hundred
dollars.
Art. 330. All persons guilty of any of the offences designated in this
chapter shall also be subject to such regulations as are or shall be lawfully
made by the police ordinances, for the repair of any damages that may
be occasioned by such offences, and the removal of the works that are
forbidden by this chapter.
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TITLE XV.
OF OFFENCES INJURIOUS TO PUBLIC HEALTH.
CHAPTER I.
Of acts injurious to public health or safety.
Art. 331. No one shall carry on a manufactory of gunpowder, or shall
keep more than ten pounds of gunpowder at one time, in any building
within three hundred yards of any dwelling-house, or of any public
road, or of any land belonging to any other person than the proprietor
of the land on which such manufactory or building is erected, unless
the owner of such adjacent land shall permit such manufactory to be
carried on, and will agree not to build any dwelling-house within three
hundred yards of such manufactory or building in which such gunpow-
der is stored. Any one offending against the provisions of this article,
shall be fined five hundred dollars; and on conviction, may be enjoin-
ed by the court from carrying on such business.
Art. 332. Whoever shall carry on any trade, or business, or do any
act that is injurious to the health of those who reside in the vicinity, or
shall suffer any substance which shall have that effect, to remain on any
real property possessed by him, shall be fined not exceeding three
hundred dollars, and the party may be enjoined proceeding in the
operations that are offensive to health, and ordered to remove such sub-
stances.
Art. 333. Whoever shall wilfully ADULTERATE for the purpose of
sale, or shall sell, knowing it to be adulterated, any wine, beer, spirits
of any kind, or other liquor intended for drinking, with any substance
that renders them injurious to the health of those who drink them,
shall be fined not exceeding three hundred dollars, and the liquor so
adulterated shall be forfeited and destroyed.
Art. 334. If any person shall fraudulently adulterate for sale, or shall
sell, knowing them to be so adulterated, any drugs or medicines in
such a manner as to lessen the efficacy or change the operation of such
drugs or medicines, or to make them injurious to health, he shall be
fined not less than one hundred nor more than five hundred dollars,
and imprisoned not less than ten days nor more than six months, and
the imprisonment may be in close custody.
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417
TITLE XVI.
OF OFFENCES AGAINST MORALS.
CHAPTER I.
Of disorderly houses.
Art. 335. If any one shall keep a disorderly house, he shall be punished
by fine not exceeding two hundred dollars, or by imprisonment in close
custody not more than sixty days.
Art. 336. The houses that are punishable as disorderly, are:
1. Houses kept for the purpose of public prostitution, and DISTURB-
ANCE.
2. Houses kept as taverns, or for the sale of spirituous liquors by retail,
without license.
3. Licensed houses of the description last above mentioned, in which
any act forbidden by the license, is permitted to be done.
4. Houses in which gambling is permitted in a manner contrary to
some express law.
Art. 337. Any part of a building, appropriated to either of the pur-
poses above enumerated, is a house within the meaning of this chapter.
Art. 338. There must be more than one act of the kinds that are above
forbidden, done in a house, to constitute it a disorderly house.
Art. 339. The wife may be punished with the husband, for keeping
a disorderly house of the first description; but no house shall be com-
prehended in that term unless such acts are habitually permitted there-
in, as come within the description of those public exhibitions of person,
which are made punishable by the next chapter, or unless acts are
habitually done therein, which, if done in a public place, would amount
to the offence of PUBLIC DISTURBANCE.
CHAPTER II.
Of offences against decency.
Art. 340. If any one shall make, publish or print any obscene print,
picture or written or printed composition, manifestly designed to cor-
rupt the morals of youth, or shall designedly make any indecent or
obscene exhibitions of their persons or of those of another, in public,
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by which pudicity is offended; he shall be imprisoned not more than
six months, or fined not more than one thousand dollars, or both; and
the imprisonment, or part of it, shall be in close custody.
Art. 341. If any one shall, with design to insult, in the hearing of
any person of the female sex, utter any obscene or lascivious express-
ions, such as must shock the natural pudicity of that sex; he shall be
imprisoned in close custody not less than five nor more than thirty
days, or fined not exceeding fifty dollars, or both.
Art. 342. Whoever shall be guilty of SEDUCING a woman of good re-
putation under a promise of marriage, and shall violate his promise,
shall be fined not less than one hundred nor more than one thousand
dollars, or shall be imprisoned in close custody not less than one nor
more than six months.
Art. 343. Whoever shall, for hire, procure the means of illicit con-
nexion between persons of different sexes, or shall solicit or procure a
woman to prostitute her person to another, shall be imprisoned not ex-
ceeding three months in close custody.
CHAPTER III.
Of adultery.
Art. 344. Adultery is a term of which the meaning, as affixed by this
code, is precisely that which it bears in common parlance; it therefore
needs no other description. When committed by the wife, it is an of-
fence for which she forfeits all the matrimonial gains, to which she
would otherwise be entitled; which immediately, on the conviction,
are vested in those who would have been her legal heirs had she died
on the day of conviction; she also forfeits her civil rights of the first
class.
Art. 345. The person with whom a woman commits adultery shall
suffer fine not less than one hundred and not exceeding two thousand
dollars, or imprisonment not more than six months, or both.
Art. 346. The husband who commits adultery, by keeping a concu-
bine in the house with his wife, or by forcing her by ill-treatment
to abandon his house, and keeping his concubine in it, shall be fined
not less than one hundred nor more than two thousand dollars;
and his civil right of being tutor or curator to any minor, including
his own children, is suspended from the time of conviction, for one
year, and as much longer as he shall live with his concubine in the same
house.
Art. 347. No prosecution for adultery shall be commenced, but on
the complaint of the husband or wife; and the prosecution shall cease if
the parties are reconciled before judgment.
Art. 348. A sentence of separation, in person and estate, for cause of
adultery, must always be preceded by a conviction for that offence.
Art. 349. The indictment or information for adultery against the wife
must be a joint one, against the woman and the man with whom the
adultery is said to have been committed, if he be alive, and the one
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419
cannot be found guilty without the other-subject to the modifications
contained in the Code of Procedure.
CHAPTER IV.
Of the violation of places of interment.
Art. 350. Whoever shall open a grave, or other place of interment,
for the purpose of stealing the coffin, or any part thereof, or the vest-
ments, or other articles, interred with any dead body which is deposited
in such place of interment; shall be imprisoned at hard labour not less
than one nor more than three years.
Art. 351. Whoever, for the purpose of sale, exposure or dissection,
shall remove any dead body from the grave, or other place of inter-
ment-shall be fined not less than fifty nor more than three hundred
dollars, or imprisoned not less than thirty nor more than ninety days.
Art. 352. The last preceding article does not extend to cases where a
dead body shall be disinterred in the manner directed by the Code of
Procedure, for the purpose of examination into the means by which the
deceased lost his life.
Art. 353. Whoever shall purchase, or sell, or otherwise than is herein-
after provided, shall dissect any dead body before its interment-shall
be fined not less than fifty nor more than two hundred dollars, or shall
be imprisoned not more than ninety days.
Art. 354. The last preceding article does not extend to cases where a
dissection is ordered in case of suspicion of murder, according to the
provisions of the Code of Procedure:
To cases where the deceased has himself directed it.
To cases where it is performed by the permission of the next of kin
to the deceased.
Or, to cases where dissection is ordered by law to be perfomed upon
the bodies of those who die in prison, under conviction of certain
offences.
Art. 355. The dead body, intended by this chapter, is that of a hu-
man being.
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TITLE XVII.
OF OFFENCES WHICH AFFECT PERSONS IN THE EXERCISE OF THEIR RELIGION.
Art. 356. If any one shall MALICIOUSLY prevent any person from
doing any lawful act that is required by the religion he professes; or
shall, by force or threats of force, or of injury to person or property,
oblige, or endeavour to oblige, any one to follow any forms of worship,
or to profess any mode of religious belief, or to perform any religious
rites or ceremonies; he shall be fined not less than twenty nor more
than two hundred dollars, or imprisoned in close custody not exceeding
forty days, or both.
Art. 357. If the offence, described in the last preceding article, shall
be committed by a judicial or executive officer, under COLOUR of author-
ity derived from his office, or by any priest or minister, or preacher of
any religious congregation or sect, the punishment shall be doubled.
Art. 358. Nothing in this chapter contained shall prevent a parent or
tutor, or curator, or master, from obliging his child, or ward, or ap-
prentice, being a minor, by all such means as are permitted by law for
the enforcement of his other legal commands, to conform to the forms
of worship in which such minor was educated.
Art. 359. Nor do the provisions of this chapter prevent the enforce-
ment of the rules, canons, or ordinances, made by different churches,
or religious congregations or societies, for the preservation of discipline
or order among their members: provided, that such enforcement shall
not be made by the infringement of any civil or political right, or by
any act declared by this code to be an offence.
Art. 360. If any act which by this code is made an offence, shall be
committed in a place of public worship during the celebration thereof,
so as to disturb any religious society in the legal performance of their
worship, or their religious rites and ceremonies. The punishment for
such offence shall be doubled and shall not in any case be less than a
fine of fifty dollars or imprisonment in close custody for fifteen days.
Art. 361. If such disturbance be intentionally made by any act which
is not otherwise created an offence, the punishment shall be fine not
exceeding fifty dollars, or imprisonment not exceeding thirty days.
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TITLE XVIII.
OF OFFENCES AFFECTING REPUTATION.
}
CHAPTER I.
Of defamation.
Art. 362. Whoever shall defame another, shall be punished by fine
and imprisonment, or both.
If the defamation impute a CRIME, it shall be punished by fine not
exceeding three thousand dollars, or by imprisonment not more than
twelve months, or by both; and the imprisonment may, for the whole
or a part of the time, be in close custody.
If the defamation do not impute a CRIME, the punishment shall be
lessened one-fourth.
If the defamation be by libel, imprisonment in close custody shall
always form a part of the punishment.
Art. 363. Defamation is an injury offered to the reputation of another,
by an allegation which is either untrue, or, if true, is not made with a
justifiable intent.
Art. 364. Defamation may be made verbally or by signs, which is
called slander; or by writing or painting, which is called libel.
Art. 365. This offence consists in the injury offered to reputation, not
in any probable breach of the peace or other consequence that may
result from it.
Art. 366. There must be some injury offered in order to constitute the
offence; therefore, the words used, or the figures represented, must
convey the idea, either—
1. That the person, to whom they refer, has been guilty of some
crime.
2. That he has done some act, or been guilty of some omission,
which, although not a crime, is of a nature to make people in general
avoid social intercourse with him, or lessen their confidence in his in-
tegrity.
3. That he has some moral vice, or physical or mental defect or dis-
ease, that would cause his society to be generally avoided or
4. That his general character is such as to produce either of the effects
mentioned in this article.
Art. 367. It is also an injury, coming within the definition, if the
natural tendency of the words or representations used is to bring upon
the person, to whom they refer, the hatred, ridicule, or contempt of
the public; or to deprive him of the benefits of social intercourse.
Art. 368. To make false representations, importing that the party re-
ferred to wants the necessary talents, or is otherwise incompetent to
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perform or conduct the office, business, profession, or trade, in which
he is engaged; or is dishonest in his conduct therein; is also an injury
within this part of the definition.
Art. 369. But it is not an offence to make true statements of fact, or
express any opinion, whether such opinion be correctly formed or not,
as to the qualifications of any person for any public office, with a bona
fide intent to give information to those who have the power of making
the appointment or election to such office.
Art. 370. Nor is it an offence to make true statements of fact, or ex-
press the opinion which he who gives it entertains relative to the integri-
ty or other qualifications to perform the duties of any station, profession,
or trade, when it is done by way of advice to those who have asked it,
or to those whom it was a duty, arising either from legal or social con-
nexion, or from motives of humanity, to give such advice.
Art. 371. Nor shall it be deemed an offence, to make or publish any
criticism or examination of any work of literature, science, or art; or
to express any opinion on the qualifications, merits, or competency of the
author of such work, in relation thereto; although such criticism, exam-
ination, or opinion, shall be ill-founded and prove injurious to the party
to whom it refers: provided, such criticism or expression of opinion
be not intended to cover a malicious design to injure the party to whom
it refers.
Art. 372. If the injury spoken of in the definition be OFFERED, it is
sufficient to constitute the offence; by which is not meant, that the in-
jury must be actually suffered; but that the words or representations
are such as, in the ordinary course of affairs, tend to cause such injury,
according to the definition and explanation of that word in this chapter.
Art. 373. All those who make, publish, or circulate a libel, are sever-
ally guilty of the offence of defamation.
Art. 374. He is the maker of a libel, who originally contrived, and
either gave it form himself, by writing, printing, engraving, painting,
or any other of the modes which may constitute a libel, or caused it
to be so done by others.
Art. 375. He is the PUBLISHER, who executes the mechanical labour
of writing it when dictated by the maker, or who paints or engraves,
or in any other manner gives it form under his direction, who copies,
or prints it.
Art. 376. He circulates who sells a libel, or who, knowing the con-
tents, gives or distributes, or reads, or exhibits it to others.
Art. 377. If the libel be in a printed form, and is printed or sold in
an office, or shop, where books, or other printed works are usually
printed or sold, the person on whose account the business of such office
or shop is carried on, is presumed to be the person who published or
circulated it, until he remove that presumption by contrary proof.
Art. 378. In like manner, if the libel be an engraving, or painting,
and is made and sold in an office or shop, in which paintings or engrav-
ings are usually made or sold, the person on whose account the business
of such office or shop is carried on, is presumed to be the person who
published or circulated it.
Art. 379. No one shall be convicted merely on evidence of his hav-
ing made a manuscript copy of a libel, or of having performed the me-
chanical labour of printing it, who can prove that he made such printed
or written copy without any intent to injure the person to whom it
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423
refers; but he, for whose account, or by whose order it is printed,
shall be presumed to have known the intent of publication, and shall be
liable for the offence.
Art. 380. He is not guilty of the offence, who only lends or gives a
book or paper containing a libel, or reads it to another after it is al-
ready in general circulation, unless some circumstances are proved to
show that it was done with design to injure.
Art. 381. The injury to constitute the offence, must be offered to the
REPUTATION. Words, or representations which injure the party in his
title to property only, form a different offence, provided for under its
proper head.
Art. 382. The words "of another," in the definition of this offence,
comprehends every person in possession of his CIVIL RIGHTS, as also
aliens, whether resident within the state or not.
Art. 383. The dead are also included in this term, but subject to the
following formality and proviso:
1. No prosecution shall be commenced, but on the complaint of a
family meeting, called at the request of a descendant, collateral rela-
tion, or friend of the deceased, in the manner directed by the Code of
Civil Procedure.
2. No prosecution can be supported, for the statement of any his-
torical facts, or delineations of character in any literary work, whether
the party to whom they refer be dead or alive, provided such state-
ments be made in the fair prosecution of historical or other literary
disquisition, and not for the purpose of defamation.
Art. 384. The word "allegation," as used in the definition, compre-
hends not only the direct assertion of a fact, but every mode of speech
or device, by which the hearers or spectators may understand what is
intended.
Art. 385. The words or representations by which the allegation is
expressed, are to be understood in the sense in which they were
intended by the person using them intent and signification are mat-
ters of fact to be determined from a consideration of all the evidence
in the case.
Art. 386. An important part of the definition is that which deter-
mines that the uttering of truth may sometimes constitute defamation.
The truth may be expressed in all cases in which it is not forbidden
by law, but the allegation of falsehood is not always an OFFENCE; it is
sometimes made the cause of private suit, sometimes left to the sanc-
tion of the moral sense, or of public opinion. For the development of
this branch of the definition, the following rules are established:
1. True statements of the OFFICIAL conduct of members of the gene-
ral assembly, or of public officers, and of the proceedings of all legisla-
tive bodies, PUBLIC CORPORATIONS, and courts of justice, may be le-
gally made.
2. Observations on the tendency of the official acts of members of
the legislature, and of public officers, and on their motives in perform-
ing them, are permitted, even if the author should mistake such ten-
dency or motives; but a false allegation or suggestion of such motives,
as would, connected with the act, constitute a crime, is defamation.
3. Allegations, having no natural connexion with the case, provided
for by the two last preceding articles, which would amount to defama-
tion, if made or exhibited alone, are offences, although they may be
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contained in publications which treat or propose to treat of the conduct
of public measures and public officers.
Art. 387. Allegations, in writing, made with respect to all other than
the official acts above provided for, which would, if they were false,
be defamation, shall, although true, constitute that offence, if they are
made from motives of revenge, hatred, envy, or ill-will of any other
kind, entertained by the party making them, or to gratify either of
those passions in any other; and they shall be deemed to have been
made from such motive in all cases in which the defendant cannot
show that he was actuated by some motive of public good, or private
duty, in making the allegation.
5. No true allegations but such as are described in the last prece-
ding rule, and no false allegations but such as are declared to be offences
by this code, are declared punishable by law.
6. No prosecution can be maintained for defamation, on account of
any thing said or written, either as judge, attorney, counsel, party or
witness, in a court of justice in the course of a legal proceeding, pro-
vided that what is said or written be relevant to the matter before
such court, and is not introduced for the sole purpose of injuring
the party to whom it refers.
7. Inquiries and suggestions, made even out of court, if done with
a bona fide view of investigating a fact, necessary for the party's inte-
rest in a civil, or defence in a criminal prosecution, and not from ma-
lice towards the party to whom they refer, are not an offence, although
they may injure such party.
8. Nothing said by a party to a civil suit or criminal prosecution, in
confidence to his attorney, solicitor or counsel, relative to such suit or
prosecution, while it is pending, or with a view to its commencement
or defence, is an offence under this chapter.
9. The constitutions of the United States and of this state severally,
protect members of congress and of the general assembly from prose-
cutions for any thing said in either of those bodies. The same rule is
to be observed with respect to members of the legislatures of the differ-
ent states, and those who may publish their proceedings.
وو
Art. 388. The word "verbally," used in the definition of slander,
means the utterance of words by the voice; and the words "by signs,'
comprehend every motion of the fingers or other gesture, that is un-
derstood by the party using it, and by them to whom it is addressed,
to signify words, or otherwise to communicate ideas.
Art. 389. It is slander to repeat the contents of any libel, or the
words of any slander, unless the defendant show that he was not actu-
ated in doing so by any desire to injure the person defamed.
Art. 390. The word "writing," in the definition of libel, compre-
hends not only manuscript, but printing, engraving, etching or any
other means now known, or which may hereafter be discovered or in-
vented, to make words visible. The word "painting," in the same
definition, includes not only the art usually so called, but drawing, en-
graving or representing figures in any other way. It also comprehends.
hieroglyphics, or the representation of words by objects which they
signify.
Art. 391. Offences enumerated in this chapter can only be punished
by indictment, and never but on complaint of the party injured, or his
legal representative, if he be alive; or if the defamation be against the
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425
reputation of the person deceased, then in the manner herein before
provided.
Art. 392. In all the offences created by this chapter, the jury decide not
only all the facts that are in question, but the intent when it is mate-
rial, subject to the general powers given to the court in the Code of
Procedure.
Art. 393. Nothing in this chapter contained shall be so construed as
to prevent or punish the free discussion of the proceedings of the legis-
lature, or any other branch of the government, which is secured by the
constitution; and nothing shall be considered as an abuse of the liberty,
to speak, write and print on any subject which is referred to in the
constitution, but such acts of that nature as are specially constituted
offences by this code.
Art. 394. There is no such offence known to our law as defamation
of the government, or either of its branches, either under the name of
libel, slander, seditious writing or other appellation. When such alle-
gations amount to defamation of the representatives of the people, or
public officers, they are provided for by the preceding articles. When
they amount to the crime of complicity in sedition, or in opposition.
to law, they are made punishable by the general provisions respecting
accomplices.
Art. 395. There is no such offence as defamation of a body corpo-
rate or politic, or of public justice, or religion, or good morals, either
by libel or otherwise.
Art. 396. In all cases of prosecution under this chapter, the court
may, at its discretion, make it a condition that the whole or any part
of the punishment which is awarded, may be remitted on the offender's
making apology and amends to the person injured in such form and
manner as the court shall by its sentence declare; and if the person
injured shall accept of any pecuniary amends, it shall be a bar to any
private suit for defamation, founded on the same offence.
Art. 397. On the trial of any prosecution for a defamation, if the jury
find that the defendant is the author of the libel, or the speaker of the
defamatory words, and that the matter which constitutes the libel is
false in the whole or in part, they shall specially so declare it in their
verdict; declaring the allegations of the defendant to have been unfound-
ed, and, where the case requires it, malicious; and the charge made by
the defendant, the verdict and the judgment of the court, shall, when
required by the prosecutor, be published at the expense of the defen-
dant.
Art. 398. Whenever the defendant, in any prosecution for defama-
tion, shall avow himself the author or speaker of the words alleged,
and shall acknowledge that the charge they import is unfounded; or
that they were not intended to apply to the prosecutor; or in cases
where there is either ambiguity in the expression, or uncertainty as to
their application that they were not used in the sense in which they
were understood by him, but in another sense, stating it. In either of
these cases, the punishment shall be confined to the payment of costs,
and of the publication of the proceedings; unless the defendant shall
make it appear that the words, according to their true import, did not
imply any defamation, or did not apply to the prosecutor; in which
case he shall be exempt from any costs; but the proceedings may, in
like manner, be published.
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CHAPTER II.
Of other injuries to reputation by effigies or dramatic represen-
tations..
Art. 399. Whoever, with intent to bring another into contempt, or
to excite ridicule or indignation against him, shall exhibit, or shall make,
with intent that it shall be exhibited, any effigy or figure, intended
to represent such other person, shall be fined not exceeding one thou-
sand dollars, or imprisoned not exceeding ninety days, or both; and
part or the whole of the imprisonment may be in close custody. And
if more than twelve persons are collected to witness such exhibition, it
shall be deemed an unlawful assembly, and a riot, if they refuse to dis-
perse when thereto legally required.
Art. 400. If any one, with intent to bring another into contempt, or
to excite ridicule or indignation against him, shall perform, or cause
any dramatic work to be performed, in which such person is represent-
ed and personated, either by an imitation of his person, or of any pecu-
liarity in his manner, gesture, language, or otherwise, so as to make it
apparent to those who know him that he is the person intended by such
personification, the offender shall be fined not exceeding one thousand
dollars, or imprisoned not exceeding ninety days, or both; and part
or the whole of the imprisonment may be in close custody.
CHAPTER III.
Of false accusation, and threats of prosecution.
Art. 401. If any two or more persons shall combine falsely to accuse
another of a crime, and in consequence of such combination shall either
verbally or in writing make such accusation, whether judicially or
not, they shall be fined not less than one hundred nor more than three
thousand dollars, and imprisoned at hard labour not less than one nor
more than four years, besides incurring the penalty of perjury, if that
crime should be committed in the prosecution of their design.
Art. 402. If the intent of such combination be to extort any pecuniary
advantage by such false accusation, or the threat thereof, the punish-
ment shall be doubled.
Art. 403. If any one, with intent to extort money or procure other
profit, shall falsely accuse, or threaten to accuse another of any crime,
or of the doing of any act which, if the accusation were true, would
bring him into contempt, or excite public indignation against him, the
person making such threat or accusation, knowing the same to be false,
shall suffer the same punishment as is set forth in the last preceding
article.
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427
CHAPTER IV.
Of fabricating defamatory papers.
Art. 404. Whoever, with intent to injure the reputation of another,
shall, without any lawful authority, publish or circulate, or make, with
the intent to publish or circulate, any false writing, purporting to be
the act or work of such other person, which does not constitute the
crime of forgery, but which would, if the same were true, bring the
person, whose act or work it purports to be, into contempt, cause his
society to be generally avoided, excite public ridicule or indignation
against him, or injure him in his office, profession, or trade, the offender
shall be fined not exceeding four thousand dollars, and shall be impri-
soned not exceeding one year in close confinement.
Art. 405. The words used in the last preceding article, which occur
in the first of this title, are used in the same sense in which they were
explained in that, and are subject to the same limitation.
TITLE XIX.
OF OFFENCES AFFECTING THE PERSONS OF INDIVIDUALS.
CHAPTER I.
Of assault and of battery.
SECTION I.
Of simple assault, or simple assault and battery.
Art. 406. No one has a right to use any VIOLENCE on the person of
another, except in the cases and to the degree allowed by law; such
violence used in any other case or to a greater degree, with intent to
inflict an injury, is an offence called a battery; it may be a misdemean-
or, or a crime, according to the measure of violence or the intent with
which it is offered.
Art. 407. By the term "violence," in the above definition, is meant
any physical force applied either immediately, by any part of the body
of the person using it, or by the instrumentality or intervention of any
other matter, whether animate or inanimate, and it comes within the
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definition whether the violence be produced by SECONDARY MEANS, in-
tentionally prepared by the offender, or be caused by his immediate act.
Art. 408. The explanation in the last article may be illustrated thus:
a blow with the hand is an example of physical force applied immedi-
ately by the body of the person using it; a bullet shot from a gun, a
stroke given with a cudgel, water thrown from a bowl, are examples
of the employment of inanimate matter; and one man injured by push-
ing another against him, or by beating or assaulting the horse which
draws or carries him, are instances of battery committed by the enter-
vention of animated matter, and a wound given by a spring-gun or trap
purposely set, or an injury caused by falling into a pit or over an ob-
struction intentionally dug or placed in a highway, are illustrations of
what is meant by the words of SECONDARY MEANS.
Art. 409. A menacing gesture, showing either in itself or by words.
which accompany it, an immediate design coupled with the ability to
commit a battery, is an assault; which is a misdemeanor, whether fol-
lowed by a battery or not.
Art. 410. The person of every free person being entitled to perfect
protection from the exercise of illegal force, the degree of such force
applied to it does not enter into the definition; it is a battery, however
slight, if done with intent to injure.
Art. 411. The injury meant by the definition is not only bodily pain,
constraint, or inconvenience, but alarm, a sense of degradation, or other
disagreeable emotion of the mind.
Art. 412. Whenever injury is caused by violence to the person, the
intent to injure is presumed, and the burthen of proving accident, or
another intent, is thrown on him who alleges it.
Art. 413. It is sufficient to constitute the offence if the intent be to
injure any one, although not the person to whom the violence was ac-
tually offered.
Art. 414. When an injury has been done to the person, by an act,
which, although not intended to injure, was such as, in the usual course
of things, might be expected to produce such injury to some one, it is
an offence which shall be punished by fine, not exceeding two hundred
dollars, or imprisonment not exceeding sixty days, or both.
Art. 415. Violence offered to the person does not amount to the offence
of battery, where it is done in either of the cases, or for either of the
purposes hereafter enumerated in this article; that is to say,
1. In the execution of that right of moderate restraint or correction.
which is given by law to the parent over the child: the tutor or curator
over his minor ward: the master over the apprentice or servant: the
schoolmaster over the scholar or by persons duly authorized to use
such restraint or correction towards minors, by persons standing in
either of the above relations to them;
:
2. By the curator of a person insane, for the necessary restraint of
the ward, although such ward be of full age;
3. For the preservation of order in any meeting either for religious,
political, literary, social or any other lawful purposes;
4. For the necessary preservation of the peace, or to prevent the
commission of any crime;
5. To prevent or put an end to an intrusion on a legal possession;
6. To make a lawful arrest, and to detain the party arrested in lawful
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429
custody, in cases where, by the Code of Procedure, arrests are permitted
without warrant ;
7. In obedience to the lawful order of a magistrate, or court of com-
petent authority;
8. To overcome resistance to the execution of any such lawful order.
9. In self defence, or the defence of another, against unlawful vio-
lence, offered to his person or property.
In each of the preceding cases, the force used, to effect either of the
purposes thereby declared to be lawful, must be such as does not ex-
ceed what is necessary for the purpose, otherwise it will amount to the
offence of battery. That degree of force shall be esteemed to have
been necessary, which would have appeared so to one of ordinary pru-
dence and firmness, placed in the situation in which the accused was.
Art. 416. An assault or battery cannot be justified by any verbal
provocation; but under certain circumstances, such provocation may be
submitted to the court in the manner directed in the Code of Pro-
cedure, in mitigation of the punishment.
Art. 417. No prosecution shall be commenced for simple assault or
battery, but on the complaint of the party injured, or some one repre-
senting, or duly authorized by him: when attended with any other cir-
cumstance or intent which aggravates the offence, it may, with the
exceptions hereinafter contained, be prosecuted on the complaint of any
person whatever.
Art. 418. The punishment for simple assault or battery is fine, not
exceeding one thousand dollars, or imprisonment not exceeding six
months, or both, and the imprisonment may be in the whole, or in part,
in close custody.
Art. 419. The terms, "degree of force,'
degree of force," mean as well the instru-
ment, or other secondary means employed, as physical or bodily power.
SECTION II.
Of assault and battery in relation to the person on whom, or by whom it is committed.
Art. 420. The law gives protection to all persons against illegal vio-
lence, but different remedies are applied according to the effect of the
offence upon society, when committed by, or upon particular persons
who are either appointed to preserve order, or on those who are par-
ticularly exposed to violence.
Art. 421. If assault or battery be committed on any public officer
while in the legal execution of his office, the punishment assigned to
the species of assault or battery that is committed, shall be doubled.
Art. 422. No act is an offence under this section, unless it was known
to the party accused, that the person assaulted was a public officer, and
was in the execution of his office; and he shall be deemed to have known
it when it was so openly declared in his presence, or when, from the
circumstances of the case, he could not have been ignorant both of
the character of the officer, and of the nature of the duty he was per-
forming.
Art. 423. If any public officer shall, under pretence of executing his
office, exercise any violence against any other person, in cases where
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no force is permitted to be used, or shall exceed, in cases where force
is permitted, that degree thereof which is allowed by law, the punish-
ment assigned to the species of assault and battery that is committed,
shall be doubled.
Art. 424. If assault or battery be committed by a relation in the de-
scending line against his ascendant; or by a man against a woman; or by
a ward against his tutor, the punishment assigned to the species of as-
sault or battery that is committed, shall be doubled.
SECTION III.
Of assault and battery, aggravated by its commission in a particular place.
Art. 425. If an assault or battery be committed in a court of justice,
the punishment assigned to the species of assault and battery that is com-
mitted shall be doubled; but the fine shall not be less than one hundred
dollars, nor the imprisonment less than sixty days, in close custody.
Art. 426. If any one shall go into a house occupied by another, with
the intent of committing an assault or battery on him, or on any one
of his family, or any sojourner in such house, and shall there commit
such assault, or assault and battery, the punishment assigned to the
species of assault and battery that is committed shall be doubled; but
the fine shall not be less than one hundred dollars, nor the imprison-
ment less than sixty days, in close custody.
Art. 427. The word, "family," in the last article, comprehends all
persons who habitually reside, or are guests in such house. By the
term, "house," is intended, not only the dwelling-house, but shops,
stores, and other buildings, which are used for carrying on business, or
for domestic purposes. By "sojourners," is meant any person who
lodges in, boards in, or occupies any part of such house.
Art. 428. In all cases of offences, under this and the last preceding
section, imprisonment in close custody shall form a part of the punish-
ment.
SECTION IV.
Of assault and battery aggravated by the intent.
Art. 429. If an asault or battery be made with an intent to commit
murder or rape, the offender shall be imprisoned at hard labour not
less than six nor more than ten years.
Art. 430. If the assault or battery be made with design to DISMEMBER,
DISFIGURE or inflict a PERMANENT INJURY, the offender shall be fined
not less than two hundred nor more than two thousand dollars, and
imprisoned in close custody not less than sixty days nor more than one
year.
Art. 431. If any one shall commit an assault or battery, with intent
to commit any other crime than murder and rape, he shall be imprisoned
at hard labour not less than two nor more than six years.
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Art. 432. An assault or battery, with intent to force the party injured
to commit an offence, shall be punished by one-half of the punishment
assigned to the offence intended to be committed.
Art. 433. If the assault or battery be committed against a woman,
attended with any circumstances, either of words or action, that are
calculated to wound the modesty of her sex, not amounting to an at-
tempt to ravish; the offender shall be fined not less than two hundred
nor more than two thousand dollars, and imprisoned in close custody not
less than one month nor more than one year. If the offence, desig-
nated by this article, be committed by a tutor or curator against his
ward, or a scнOOLMASTER against his scholar, the imprisonment shall
be at hard labour, and for a term not less than one nor more than two
years.
Art. 434. If an assault or battery be committed, with intent to DIS-
HONOUR; or in consequence of a refusal to fight a duel, or to provoke
another to fight a duel, or to give a challenge; the punishment, assigned
to the species of assault or assault and battery that is committed, shall
be doubled; but the fine shall not be less than two hundred dollars, nor
the imprisonment less than sixty days, in close custody.
SECTION V.
Of assault and battery, aggravated by the manner and degree in which it is inflicted.
Art. 435. If assault and battery be committed with a DEADLY WEAPON,
and in consequence of a premeditated design, although there be no de-
sign to kill actually proved; the punishment shall be fine, not less than
two hundred nor exceeding two thousand dollars, and imprisonment,
in close custody, not less than sixty days nor more than one year, in
addition to the punishment assigned to the species of assault or assault
and battery that is committed.
Art. 436. If the offence be committed in the execution of a premedi-
tated design, but not with a deadly weapon; the punishment shall be
fine, not less than fifty dollars, and imprisonment not less than twenty
days, in addition to the punishment assigned to the species of assault
and battery which is committed.
Art. 437. If the premeditated design be shown by LYING IN WAIT ;
the punishment, assigned to the species of assault or assault and battery
which is committed, shall be doubled; but shall not be less than a fine
of one hundred dollars, and imprisonment in close custody, for thirty
days.
Art. 438. If, in consequence of any assault or battery, the person
against whom it is committed shall be DISFIGURED, or shall be deprived
of or lose the use of any MEMBER OF HIS BODY, or receive such other
injury as shall render it certain or probable that he will for the rest of
his life labour under some bodily infirmity, although there be no design
proved of doing such particular injury-the punishment shall be fine,
not less than one hundred nor more than two thousand dollars, and
imprisonment in close custody, or at hard labour, not less than three
months nor more than two years.
Art. 439. If either of the injuries, mentioned in the last preceding
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article, shall be committed by premeditated design to do that particular
injury, or by LYING IN WAIT, although no design to do that particular
injury shall be proved-the punishment shall be fine, not less than five
hundred nor more than three thousand dollars, and imprisonment, in
close custody, not less than three months nor more than two years.
SECTION VI.
General provisions.
Art. 440. All the punishments assigned for the offences described in
the second, third, fourth and fifth sections of this chapter, are cUMUIA-
TIVE in cases where the different circumstances, constituting such of-
fences, concur in the same offence, and the lighter species of imprison-
ment shall be made to commence after the expiration of the heavier.
Art. 441. No prosecution for simple assault and battery, as described
in the first section; or for assault, with intent to ravish; or for the of
fence described in the two last articles of the fourth section-shall be
commenced but on the complaint of the party injured, or his legal re-
presentative, or some one duly authorized by him; unless such offence
was committed in public, that is to say, in the presence of six or more
persons, or in any dwelling-house, shop or store-in the first of which
cases, any person-in the latter, the occupant of the house, shop or
store, may make the complaint.
Art. 442. Where two persons agree to fight, unless it be with deadly
weapons, no prosecution shall be commenced for assault and battery
committed in consequence of such agreement, on the complaint of either
of the parties, or any other person, unless the assault and battery took
place in public, or in a dwelling-house, shop or store; in which cases
the prosecution may be commenced as is directed in the last preceding
article.
CHAPTER II.
Of false imprisonment.
SECTION I.
Į
Of simple false imprisonment.
Art. 443. Any intentional detention of the person of another, not ex-
pressly authorized by law, is false imprisonment.
Art. 444. The detention to constitute this offence, may be either-
By assault.
By actual violence to the person.
By some impediment opposed to the power of locomotion.
By threats.
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Art. 445. The assault and violence mentioned in the preceding ar-
ticle, are such as are defined in the last chapter; but to constitute this
offence, they must be such as to show the intent, and to have the effect
of detaining the party against his will.
Art. 446. The material impediment must be such as is not applied
immediately to the person; in which case it would be actual violence,
but it must be of such a nature as to prevent the free exercise of the
right of locomotion, without having recourse to extraordinary means.
A door merely closed with a latch, or in any other usual mode, so that
the party complaining might, without any unusual effort, open it, would
not be such an impediment; but if bolted or locked on the outside, it
would come within the definition, although the party imprisoned might
escape by the window, or was strong enough to break the door.
Art. 447. Threats, to constitute the means of false imprisonment,
must be such as would materially operate on a person of ordinary firm-
ness, and inspire a just fear of great injury to person, reputation or
fortune. The age, sex, state of health, temper and disposition of the
party complaining, and all other circumstances that may be calculated
to give greater or less effect to the violence or threats, must be taken
into consideration; and the threat must be to inflict the injury if the
person departs from the bounds prescribed.
Art. 448. A detention of the person shall not be deemed illegal, if
made in any of the nine cases set forth in the first section of the first
chapter, and nineteenth title of this book; provided, under the circum-
stances of such case, a detention of the person was necessary to effect
the object relied on as a justification, and was not continued longer
than was so necessary. The rule for determining the necessity esta-
blished by the said section, also applies to this.
Art. 449. The punishment for this offence is fine not exceeding five
thousand dollars, or imprisonment not exceeding two years, or both,
and the whole or part of the imprisonment may be in close custody.
SECTION II.
Of false imprisonment aggravated by the purpose or the degree.
Art. 450. If the party falsely imprisoned be conveyed, while so im-
prisoned, out of the state, the punishment shall be doubled, but shall
not be less than five hundred dollars fine, and six months imprisonment,
one-half in close custody.
Art. 451. If the offence be committed with intent to convey the per-
son imprisoned out of the state, although the purpose be not actually
effected, the punishment shall not be less than three hundred dollars
fine, and three months imprisonment in close custody.
Art. 452. If the offence be committed against a free person for the
purpose of detaining or disposing of him as a slave, knowing such per-
son to be free, the punishment shall be fine, not less than five hundred
dollars nor more than five thousand dollars, and imprisonment at hard
labour, not less than two nor more than four years.
Art. 453. If false imprisonment be used as the means of forcing one to
do an act which, if voluntarily done, would be an offence, the punish-
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ment shall be the one-half of that designated in this code for the offence
which it was intended to force the party to commit.
Art. 454. If this offence be committed with intent to commit a crime
or misdemeanor, the punishment shall be one half of that designated
by this code for the offence intended to be committed.
Art. 455. If false imprisonment be used as the means of forcing a
woman to do an act or submit to treatment injurious to the modesty of
her sex, the punishment, besides the fine, shall be confinement at hard
labour not less than one and not exceeding three years; and if the
offence described in this article be committed by the tutor or curator
against his ward, or a schoolmaster against his scholar, the confine-
ment at hard labour shall not be less than three nor more than six years.
Art. 456. If an imprisonment, otherwise legal, shall be used for the
purpose expressed in the preceding article, it shall be deemed a false
imprisonment.
SECTION III.
Of abduction.
Art. 457. Abduction is false imprisonment of a woman with the in-
tent to force her into a marriage, either with the offender or some
other, and that whether the marriage takes place or not.
Art. 458. If any female, under the age of fourteen years, be taken
away from her father, mother, tutor, or other person having legal
charge of her person, without their consent, either for the purpose of
marriage, concubinage or prostitution, it is an abduction, although the
female should consent, and although a marriage should afterwards take
place between the parties.
Art. 459. The punishment for this offence is a fine not less than one
hundred nor more than two thousand dollars, or imprisonment not less
than sixty days nor more than two years, or both; and the imprison-
ment may be, in the whole or in part, in close custody, and in case the
abduction be for the purpose of prostitution, the imprisonment may be
at hard labour.
CHAPTER III.
Of rape.
Art. 460. Rape is the carnal knowledge of a woman, obtained against
her consent, by force, menace or fraud.
Art. 461. The force used to constitute this crime must be such in
kind as would constitute a battery, and in degree such as may reason-
ably be supposed sufficient to overcome resistance, taking into consider-
ation the relative strength of the parties, and other circumstances of the
case.
Art. 462. The menace must be such as may reasonably be supposed
to inspire a just fear of death, or great bodily harm, taking into consider-
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435
ation the age and strength of the parties; the state of health, temper
and disposition of the party injured, and all other circumstances that
may have increased or diminished her fears, into consideration.
Art. 463. A carnal knowledge obtained by fraud, does not amount to
the crime of rape, unless the fraud consist,
1. In causing the woman, against whom the offence is committed, to
believe during its commission, that the offender is her husband.
2. In forcibly, or without her knowledge, administering to the wo-
man who is injured, any substance that produces an unnatural sexual
desire, or such stupor as to prevent or weaken resistance, and commit-
ting the crime while she is under the operation of that which is so ad-
ministered.
Art. 464. Consent cannot be presumed to have been given, from an
acquiescence in the sexual connexion, when produced by either of the
means mentioned in the definition.
Art. 465. Carnal knowledge is accomplished by the commencement
of a sexual connexion; proof of the circumstance that usually termi-
nates it is not required.
Art. 466. No person can be convicted of this offence, or of an assault
with intent to commit it, who had not, at the time the offence is said to
have been committed, attained the age of fourteen years.
Art. 467. Carnal knowledge of a female under the age of eleven
years, is in itself a rape, without any evidence of force, menace, impri-
sonment or frand.
Art. 468. The punishment of rape is imprisonment in the peniten-
tiary for life.
CHAPTER IV.
Of abortion.
Art. 469. Whoever, by violence, or by any means, externally or in-
ternally applied to any pregnant woman, with her consent, shall design-
edly procure an abortion, shall be imprisoned in the penitentiary not
less than three nor more than six years. If it be done without her
consent, the punishment shall be doubled.
Art. 470. He who furnishes such means, knowing the purpose to
which they are intended to be applied, is guilty of this offence.
Art. 471. He who designedly furnishes or administers the means in-
tended to produce abortion, when they are administered, but fail in
their effect, shall suffer one half the punishment that the crime would.
have incurred, had it been completed.
Art. 472. If the offender be a physician or surgeon, or practising as
such, he shall suffer the highest punishment that can be inflicted for
the offence.
Art. 473. Nothing herein contained shall extend to the case of an
abortion procured by medical advice, for the purpose of saving the
life of the mother.
Art. 474. If death ensues, by reason of the attempt to procure abor-
tion, it is murder, except in the case provided for in the last article.
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CHAPTER V.
Of injury to the person by malicious potions.
Art. 475. If any one shall maliciously cause another, without his
knowledge, or against his will, to swallow or inhale any substance
which causes any interruption or violent change in the usual functions.
of his body, or injures his health, he shall be fined not less than one
hundred dollars nor more than one thousand dollars, and imprisoned
in close custody not less than ten days nor more than three months;
and if such substance was given with intent to murder, he shall be
punished in the manner hereinafter directed in the chapter concern-
ing murder.
Art. 476. If such substance so maliciously adminstered, causes any
malady of which the party to whom it is administered shall die within
one year, although there was no intent to kill, the offender shall be
punished by imprisonment at hard labour not less than four nor more
than ten years.
Art. 477. If the malicious intent was not to kill, and the substance
so administered shall be the immediate cause of the death of the person
to whom it was given, the offender shall be punished by imprison-
ment at hard labour not less than seven nor more than fifteen years.
Art. 478. If such substance, although not coming within the defini-
tion of POISON, be given with intent to kill, and it shall have that
effect, it is murder.
CHAPTER VI.
Of homicide.
SECTION I.
Of homicide in general, and of its different divisions.
Art. 479. Homicide is the destruction of the life of one human be-
ing, by the act, procurement or culpable omission of another.
Art. 480. The life which is destroyed must have been complete by
the birth of the being who is deprived of it. The destruction of a
child before its birth is an offence specially defined.
Art. 481. The destruction of human life at any period of its existence
after birth, is homicide, however near it may be extinction from any
other cause.
Art. 482. The destruction must be by the act of ANOTHER; there-
fore self-destruction is excluded from this definition.
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Art. 483. It must be operated by some act; therefore death, although
produced by the operation of words on the imagination, or the passions,
is not homicide. But if words are used, which are calculated to pro-
duce and do produce, some act which is the immediate cause of death,
it is homicide. A blind man, or a stranger in the dark, directed by
words only to a precipice, where he falls and is killed; a direction
verbally given to take a drug that it is known will prove fatal, and
which has that effect; are instances of this modification of the rule.
Art. 484. Homicide by omisssion only, is committed by voluntarily
permitting another to do an act, that must, in the natural course of
things, cause his death, without apprising him of his danger, if the act
be involuntary, or endeavouring to prevent it if it be voluntary. He
shall be presumed to have permitted it voluntarily, who omits the ne-
cessary means of preventing the death, when he knows the danger,
and can cause it to be avoided, without danger of personal injury or
pecuniary loss. This rule may be illustrated by the examples put in
the last preceding article: if the blind man is seen walking to the pre-
cipice by one who knows the danger, can easily apprize him of it, but
does not; or if one who knows that a glass contains poison, sees him
about to drink it, either by mistake or with intent to destroy himself,
and makes no attempt to prevent him; in these cases the omission
amounts to homicide.
Art. 485. The exposing another to causes either natural or adventi-
tious, which in the natural course of things must probably produce and
do actually produce death, is homicide; and this may be either by act,
or by omission; the placing an infant or other helpless person, in the
open air during a winter's night by which he is frozen to death, or in
the midst of a frequented high way where he is killed by the wheel of
a carriage, is an illustration of this species of homicide by act.
He who shall with the knowledge of the danger leave a person of
such description to perish in either of those situations when he could
have been removed without personal danger or pecuniary loss commits
this kind of homicide by omission.
Art. 486. Every being of the human species, of whatever age or con-
dition, is included in the relative terms, "one human being," and
"another," in the definition of this article. Therefore no death is
homicide that is not caused by human agency. If the agent or sufferer
have never attained, or have been deprived of reason, it is still homicide.
Art. 487. Human agency must be the cause of the death; therefore,
he who gives a slight wound, which from neglect becomes a mortifica-
tion, and proves fatal, is not guilty of homicide. If the same kind of
injury proves fatal by the administration of improper remedies, the
homicide is not the act of him who inflicted the wound, but of the one
who applied the remedy, and may be criminal or not, according to the
intent and other circumstances.
Art. 488. Although the injury that caused the death might not, under
other circumstances, have proved fatal, yet if without any evident neg-
lect, or treatment manifestly improper, it causes death, it is homicide.
Thus, if an artery be cut, and the party bleed to death for want of aid,
it is homicide, although, if proper assistance had been obtained, the
artery might have been secured. What shall be proper or conclusive
evidence of the cause of death in questions of homicide, is found in the
Code of Evidence.
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Art. 489. Death, or the total extinction of life, is a necessary part of
the definition. If the act produce disability of any kind, or even the
extinction of any or all of the senses, it is not homicide, while life
remains.
All means
Art. 490. The nature of the means or instrument by which death is
caused or inflicted, is not essential to constitute homicide.
by which life is destroyed, are within the definition.
Art. 491. Homicide is justifiable, excusable, or culpable.
SECTION II.
Of justifiable homicide.
Art. 492. That is justifiable homicide, which, although committed
voluntarily, is inflicted in cases where it is required or permitted by
law. These cases are enumerated in the following section.
SECTION III.
Of homicide justified by the requisition of law.
Art. 498. Homicide of a public enemy in the prosecution of war, is
justified by the laws of nations. An enemy in the act of hostile inva-
sion or occupation of any part of this state, is not within the protection
of its laws; but an enemy, although one of an invading force, who is
within the state as a prisoner of war, as a deserter, as the bearer of a
flag of truce, or in any other character which does not show a design
to commit hostilities, and all enemies' subjects, brought within the state
by force, coming there without any hostile intent, or found there at the
commencement of the war, are entitled to the same personal protection
of the laws as citizens are, excepting only the degree of personal re-
straint that may be imposed by the laws of the United States, or the
rules and usages of war.
Art. 494. Neither the laws of the United States, nor the laws of na-
tions, justify the homicide even of an invading enemy, by poison, by
assassination, or by the use of poisoned weapons.
Art. 495. By assassination, in the preceding article, is meant homicide,
committed on a public enemy by one who has come under an express
or implicit obligation to refrain from any hostile act; if one who should
be received as a deserter in the enemy's camp, or should go there in
the disguise of a person bringing provisions, or who being a prisoner
should be suffered to go at large on his parole, and should, under such
circumstances, put an enemy to death, afford an example of what is
meant by the term as here employed.
Art. 496. Those are PUBLIC ENEMIES, who are declared such by the
constitutional authority, and those who have declared themselves such,
either in the manner usual among nations, or by a hostile invasion of
the territory of the nation.
Art. 497. It may also be required by law, that persons convicted of
certain offences, be punished by death. Whenever such laws, either
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439
of the United States or of this state, exist, the execution of a criminal,
in pursuance of the unreversed sentence passed by a competent court,
in the manner, at the time, and by the officer, prescribed by the law
and the sentence, is justifiable homicide.
Art. 498. The preceding articles of this section describe the only
cases in which homicide can be justified, as being required by law. It
is permitted, as a necessary alternative, to avoid a greater evil in the
following cases, that is to say, in the execution of certain public duties,
specially designated to prevent the commission of certain enumerated
crimes, and in defence of person or property, against the injuries, and
in the manner designated by law. The circumstances under which
homicide will be justified in each of the above cases, is more fully de-
veloped in the following sections.
SECTION IV.
Of homicide, permitted in the performance of a duty to the state.
Art. 499. There are certain public duties of such importance to socie-
ty, that those upon whom the obligation to perform them devolves, are
bound to it at the risk of their lives. Justice, therefore, requires, that
the law should permit all proper means of defence against the dangers
to which they are exposed. On this principle is founded the impunity
allowed by law to the class of homicides, treated of in this section,
which designates what public duties come within its purview, and un-
der what circumstances homicide, done in the performance of them,
shall be justified.
Art. 500. The first of these duties is the execution of the lawful
orders of MAGISTRATES and courts; and in such cases, homicide, by
the person legally charged with that duty, is justifiable where it is vio-
lently resisted, and he has a JUST REASON to fear, that his own life will
be in danger if he persevere in executing the order; subject, however,
to the modifications and restrictions contained in the following rule :
1.
As to the order itself.
1. The order must be that of a MAGISTRATE or court, having legal
power to issue it.
2. It must have so much of the form prescribed by law as is declared
necessary to give it validity.
3. Whether the court or magistrate have judged erroneously or not
in making the order: it is a justification to the person executing it, if
it emanate from a proper authority, and is made in legal form, or with
all essential requisites.
2.
As to the person executing the order, and his conduct in perform-
ing that duty.
4. The person must be an OFFICER OF JUSTICE, or some other legally
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authorized to perform the duty in question, according to the pro-
visions contained in the Code of Procedure.
5. If an officer of justice, and performing an act which none but an
officer could do, he must have taken the oath of office, and given security
when they are required by law.
6. He must execute the order in the manner prescribed by law, and
must in all cases, whether it be elsewhere prescribed or not, at the time
of performing the duty, and before doing the act which caused the
homicide, have declared to the person making opposition, that he was
an executive officer of justice, or had other authority (designating it) to
perform the duty.
7. If the order be by written warrant, and the party against whom it
is issued, submits, but desires to see it, or hear it read, the person charged
with its execution, is bound to produce, and show, or read it, accord-
ing to the request; and if he refuse such request, and persevere in
executing the order, it shall be no justification to him for any homicide
committed after such refusal.
8. If the order be to make an arrest, the person executing it is bound
not only to show the order where it is in writing, and is required, in
the manner prescribed in the last preceding rule, but to declare in all
cases, at least to the person he is about to arrest, for what offence, or
whose suit, (if in a civil suit) the arrest is made.
9. At or after the arrest, if any resistance be made by force, the
officer, or other person making the warrant, is bound to oppose to such
resistance, a force sufficient so to overcome it, as to be enabled to per-
form the duty required of him by the writ, and no greater force; but if
the resistance be of such a nature as to give him JUST REASON TO FEAR
THE LOSS OF LIFE if he persevere, he may then use such force as is
necessary for his own defence, and if homicide ensues, he is justified.
10. An endeavour to escape before or after an arrest, by flight only,
will not justify the infliction of death, or the use of DEADLY WEAPONS
to prevent it; but if the fugitive be armed with a deadly weapon, and
the pursuer has JUST REASON TO FEAR, from the threats or gestures of
the person pursued, that his own life will be endangered by continuing
the pursuit, he may then use deadly weapons to stop the flight; and
if they produce death, he is justifiable.
11. The case of prisoners attempting to escape from a public prison,
is an exception to the last preceding rule. Deadly weapons may be
used, and death inflicted on any prisoners legally committed, who shall
endeavour, BY BREACH OF PRISON, to escape, but not until previous
warning has been given, and the prisoners persevere in their attempt.
12. These rules apply as well to the justification of those who are
legally aiding an executive officer of justice in the execution of a legal
order, as to that of the officer, or other person, specially charged with
the duty. They also apply to the homicide of any other person oppos-
ing the execution of the order, as well as to him against whom the
order is directed.
13. They apply also to orders in civil suits, as well as in criminal
prosecutions, and to courts and magistrates of the United States, law-
fully acting in this state, as well as to the state magistrates and courts.
14. The words "just reason," as used in this section, mean such
reasons as would impress a man of ordinary understanding and firm-
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441
ness, if placed in the same circumstances, with a belief that he was in
great hazard of losing his life.
Art. 501. Another duty to the state, which justifies homicide when
necessary to its performance, is the opposition to rebellions, insurrec-
tions and riots. Death inflicted by any one acting in pursuance to the
provisions of this code, or to those of any other law of the state that may
be made for the suppression of riots, is justifiable homicide.
Art. 502. Whenever any law of this state, or of the United States,
shall require an officer or any other person to perform a public duty,
and, from the law, or the nature of the duty, the legislative will plainly
appears to be that the duty should be performed, notwithstanding any
forcible opposition, then homicide in the performance of the duty is
justifiable, provided the directions of such law be strictly pursued, and
subject to such of the rules laid down in this section for the execution
of judicial orders as can be applied to the case, although it may not be
a judicial order; but if it be a case of judicial order, then subject to
all those rules; and all those which designate the nature of the opposition,
and to limit the lawful resistance that may be applied to overcome it,
are hereby declared to apply to all cases provided for by this article.
Art. 503. Whenever any law of the state, or of the United States, shall
give authority to any officer or other person to call for the aid of the
country or the military power, to enforce its execution, it shall be
deemed, without any other indication, such a case as is contemplated
by the last preceding article.
Art. 504. Homicide by a military or a naval officer, or by any one
under the command of either of them, or by an officer or soldier of
the militia on actual service, is justifiable if it happen in the lawful
arrest of a deserter or other person amenable to the military laws to
answer for a military offence; but in such case the rules laid down in
this section with respect to judicial arrest must be observed.
SECTION V.
Of homicide permitted in defence of person or property.
Art. 505. Homicide is permitted in the necessary defence of person
or property under the circumstances and restrictions set forth in the
following articles.
Art. 506. For the prevention of the crimes of murder by violence,
rape, robbery, arson, burglary and nocturnal theft; the necessity of the
case permits the infliction of death on those who have begun to com-
mit either of them, subject to the following rules, that is to say,
1. The intent to commit the crime must be unequivocal, and appar-
ent by acts, or by acts coupled with words.
2. The homicide for this cause cannot be justified, unless it be done
before the crime is completed, and after it is begun to be executed, that
is to say, after some act is done showing unequivocally either by itself,
or by words coupled with it, an intent immediately to commit the crime.
3. The crime is not completed in the sense of the last preceding ar-
ticle, while the offender, in the case of murder, is still committing vio-
lence, although the mortal stroke may have been given; in the case of
rape, while the ravisher is continuing his violence, although he may
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have done enough to make himself guilty of the crime; in the case
of robbery, while the robber is still in the presence of the party rob-
bed, or is flying with his booty; and in the cases of arson, burglary,
and nocturnal theft, while the offender is still in the building where the
crime has been committed.
4. The beginning to commit either of the crimes above mentioned,
is prima facie evidence of the necessity of inflicting death, to prevent
the completion of it; but if the crime would have been prevented, or
the persons of the offenders secured by means within the knowledge
and power of the person doing the homicide, without resorting to that
act, and without danger of life, it is not justifiable homicide; but re-
ceives its designation from the circumstances of extenuation or crimi-
nality attending it, according to the rules hereafter established in this
code.
5. The rules contained in this article relate to death inflicted by de-
sign; the use of weapons or other means calculated to produce death,
is presumptive evidence of the design to inflict it.
Art. 507. When any other crime, but one of those enumerated in the
last preceding article, is attempted, it is not lawful to inflict death for
its prevention, until all reasonable endeavours have been made to avoid
the danger, if the crime be one of those which endanger the person,
or to prevent it by other means, if it affect property.
Art. 508. The endeavour to avoid the danger, in the case of a crime
attempted against the person, which are mentioned in the preceding
article, are,
1. The use of such means as are in the party's power to repel the
assault, short of such as are of a nature to produce death, if the nature
of the attack, the weapons with which it is made, the relative weakness
of the assailant, or other circumstances, enable the person assailed to
secure himself without resorting to the infliction of death, or the use
of such means as will probably produce it.
2. If he have not the means to repel the attack without endan-
gering the life of the assailant, or do not think proper to use those
means, if he have them, he must retire from the assailant; the idea of
dishonour being attached to such means of avoidance will not excuse
the neglect of it; the laws can acknowledge no dishonour in obedience
to what they command. This retiring must be with a bona fide intent
to avoid the danger: it must be continued until it is stopped by some
material obstacle, or the want of physical power to continue it. But
in cases where retreat would expose to greater danger than facing the
attack, it is not required.
Art. 509. Even after using the endeavours above mentioned to avoid
personal dangers without effect, it is not lawful to inflict death in order
to repel every attack, or avoid every species of personal danger : it
must be such an attack as gives a JUST FEAR of death, or of permanent
bodily injury.
Art. 510. Whatever circumstances are by this section declared to be
a justification for homicide, in the party against whom the crime is com-
mitted or intended, will be a justification for others interfering with a
bona fide intention to prevent the commission of a crime.
Art. 511. Homicide is also justifiable in the necessary defence of
property, although the attempt to take it do not amount to the crimes
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443
above provided for, of murder by violence, robbery, rape, burglary,
and nocturnal theft. Every man has a right to his legal possession of
property; he is not bound to yield it to the force of any invaders. If,
therefore, any one attempt by illegal force to deprive another of pro-
perty, either real or personal, in his actual, corporal and legal possess-
ion the legal and actual possessor may defend his possession by a force
proportioned to that with which it is attacked, and if the aggressor
persist in his unlawful attempt in a manner that gives the party attack-
ed a JUST FEAR of death, he is justified in defending himself and his
possession by killing the invader.
:
This article is to be construed by the following rules, and modified as
follows, that is to say,
1. The possession must be of a corporal property, not a mere right;
and must be an ACTUAL not a mere CONSTRUCTIVE possession.
2. The possession must be a legal one; but it is not necessary that
the actual property be vested in the possessor, but he must have ac-
quired the right of possession.
3. The resistance must be made to the illegal force during its exer-
cise; if the actual possession be once lost, it will be no justification of
a homicide that it was inflicted in an attempt to regain it.
4. No resistance that would probably produce death, can be justified
in this case, unless the attack is made in such a manner as to create in
the possessor a JUST FEAR of death, in case he should persevere in the
defence of his possession.
5. Every endeavour in the power of the possessor must have been
used to induce the aggressor to desist, both by words and such physi-
cal means as were in his power, before resorting to the means that
produced death.
6. Every thing in this article which relates to the nature of the pos-
session, or the degree of force that may be justifiably used, applies to
any person aiding the possessor to maintain his possession.
7. Nothing in this article contained, relates to the defence of pro-
perty against an attempt to rob, which is heretofore provided for.
Art. 512. Except in the instance provided for, by the last preceding
article, homicide is not permitted by law for the prevention of any
offence that is not a crime; thus, neither simple assault and battery,
nor trespass, will justify homicide, nor will any crime not accompa-
nied by force; thus, neither private stealing, nor even poisoning, can
be lawfully prevented by homicide.
SECTION VI.
Of excusable homicide.
Art. 513. Homicide is excusable, and consequently not criminal,
whenever the death of one human being, though caused by the act of ano-
ther, can be attributed neither to negligence nor design, but happens in
the prosecution of a lawful act by lawful means; and is caused by some
accident which ordinary human prudence could not foresee nor avoid.
If in shooting at game on his own grounds, a man kill another who is
hid unknown to him in the wood, he commits homicide, for it comes
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within the definition of that act; but it is excusable, for it was invo-
luntary, and was not caused by negligence; but if the shot is fired
across a highway, and one travelling thereon is killed, there is negli-
gence, and the homicide is not excusable.
Art. 514. The lawful act which causes the death must be done by
lawful means, used in a lawful degree. It is lawful to correct a scho-
lar, or an apprentice; but if this be done with an instrument likely to
produce death, or if with a proper instrument the chastisement be cru-
elly inflicted, and death ensue, it is not excusable homicide.
SECTION VII.
Of culpable homicide.
Art. 515. Every homicide that is neither justifiable nor excusable,
according to the foregoing definitions and illustrations, is a culpable
homicide.
They are negligent or voluntary.
§ 1.
Of negligent homicide.
Art. 516. The species of homicide thus called, is that which is in-
flicted without design to kill either the person actually killed or any
other.
Art. 517. This is an offence, of which the several grades are distin-
guished by the degree of negligence and the nature of the act, in the
performance of which the homicide happens; each degree forming a
separate class of offences.
§ 2.
6
Of negligent homicide in the first degree.
Art. 518. The first degree of this offence, is homicide involuntarily
inflicted in the performance of a LAWFUL ACT, in which there is no
apparent risk of life, by ordinary means, but without that care and
precaution which a prudent man would take to avoid the risk of de-
stroying human life.
Whoever is guilty of this offence, in this degree, shall suffer impri-
sonment, not less than two months nor more than one year, of which
such party may be in close custody as the court may direct.
Art. 519. The following rules, derived from the foregoing defi-
nition, are to be observed:
1. The act, in the performance of which the homicide happens,
must be lawful; by which is meant, any thing that is not forbidden
by the penal law, or which would not give just cause for a civil suit.
2. It is an essential part of this definition, that the danger of causing
death, in doing the act, should not be apparent. Where there is such
apparent danger, the offence becomes a crime.
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3. The terms, "ordinary means," in the definition, are not con-
fined strictly to such as are usually employed; they are intended to
admit the employment of means different from those ordinarily used,
provided they are not more dangerous.
4. The want of care and precaution distinguishes this from excusa-
ble homicide, and places it in the first or incipient degree of culpabil-
ity. In all that regards the preservation of human life, a greater
degree of caution is required, by law, than it demands in other cases.
By" caution," is meant a consideration of probable consequences,
and the use of means to avoid them, if they appear injurious. There-
fore, in order to avoid the guilt of this offence, it is not enough to ab-
stain from acts, or from the use of such means, in performing them, in
which a risk of homicide is known or apparent; but where, from the
nature of the case, it is as reasonable to believe, that danger of destroy-
ing life may exist, as that it may not exist, the law requires a pre-
vious examination.
5. The degree of caution described, as that which a prudent man
would use, must be determined by a consideration of the circumstances
as they appeared before the event; if the event alone were sufficient
to prove want of caution, all casual homicide would be culpable.
1st Example. When death is casually inflicted, by the discharge
of fire arms which are believed not to be loaded, without examining
whether they are so or not, it constitutes this offence. If the examina-
tion be made, and owing to some unknown cause, although loaded,
they appear to be empty; or, if unknown to the person using them,
they have been loaded immediately after the examination, due caution
has been used, and there is no offence.
2d Example. If one, in blasting a quarry, although at a distance from
a public way, makes the explosion without examining whether any per-
sons are so near as to be injured by it, the offence is incurred.
If he
make the examination and discover no one, he is innocent, although
a person concealed from his view, or one who came suddenly on the
spot, should be killed. If the quarry be in a frequented place, or he
knew there were bystanders, another offence would be incurred.
Art. 520. Death caused by any kind of fire-arms, purposely directed
against any one, without intention to kill or injure, but merely in sport,
is negligent homicide of the first grade, whether any examination of
the arms have been previously made or not.
§ 3.
Of negligent homicide in the second grade.
Art. 521. Homicide of the second grade, is that which is involuntarily
committed in the performance of a lawful act, but under circumstances,
in a manner, or by means, which cause an apparent danger of inflicting
death, without due precaution to avoid such danger. It is punishable by
imprisonment, not less than two nor more than four years, in the peni-
tentiary, or in close custody, at the discretion of the court.
Art. 522. An important distinction between this and the first grade
of negligent homicide is, that in this the risk of causing death, or other
great bodily harm, must be apparent; by which is meant, that it must
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necessarily be perceived by a common observer, without inquiry or
examination, merely by witnessing the act, and reflecting on its conse-
quences.
Art. 523. The words, "lawful act," used in the definition, have
the same meaning as is explained in that of the first grade of this of-
fence.
Art. 524. The word, "circumstances," used in the description of this
offence, relates to the time, place, and such other concomitants of the
act as make it dangerous, although it would not be so at other times,
in other places, or attended by other accompaniments.
Art. 525. The word "manner," relates to the mode in which the act
is done, or in which the instruments, or means that produce it, are
used or employed.
Art. 526. The term, "mean" is intended to include the instruments
with which the act is performed, or the other modes employed to ef-
fect it.
Art. 527. The "act," intended by that term, in the last four preced-
ing articles, means the act in the performance of which the homicide
takes place.
Art. 528. The "due precaution," mentioned in the description of this
offence, is such as a prudent man would deem effectual to prevent the
danger.
Art. 529. It is no justification for omitting such necessary precaution
as is above described, that time or other circumstances did not permit
them to be taken, but that the party did every thing else in his power
to avoid the homicide. In such case the act itself, in the doing of
which the death happened, ought to be omitted, unless it be one of
those acts which are necessary for such defence of person or property
as renders homicide justifiable; in which case, the best precaution that
circumstances permitted, is sufficient.
1st Example. Of the crime generally. If one prove a cannon in a
public road, and it burst and kill a passenger, it amounts to this offence,
whether the passenger had notice of the intended explosion or not; ſor
no one has a right to stop the passage of a highway, for the purpose of
doing an act that ought to be done elsewhere.
But if the operation were performing in a proper place, and one who
had notice chose to remain, and is killed, it is no offence, for due cau-
tion has been used.
If an act that cannot be done but in a public place, such as pulling down
a house, cause the death of a passenger, who perseveres in passing after
due notice, it is no offence. If no notice be given, the killing in this
case is negligent homicide in the second grade.
2d Example. Of the "circumstances" which give the character of
apparent risk.
The common case of a workman throwing materials from the roof
of a house exemplifies this part of the definition. The criminality of
the homicide there depends on the circumstance of the PLACE in which
the act is done; if in the country, or other unfrequented place, without
previous inquiry and examination whether any one be in the way, it is
ranked in the first grade of this offence; if in the streets of a populous
city, without the precautions required by this code, or by the police of
the city, it is a negligent homicide in the second grade; if in either place,
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447
with the caution required under the circumstances of the respective
cases, it is no offence.
3d Example. Of the apparent risk, as applied to the MANNER.
It is lawful for a master to correct his apprentice by ordinary means;
yet if such correction be repeated or continued in a manner apparently
cruel or dangerous, and it causes death, although no improper instru-
ment be used, it comes within the definition of this offence.
4th Example. Of risk apparent from the MEANS used.
If death is caused by the employment of deadly weapons, or using
greater force than is necessary to repel the attack of an unarmed man
upon person or property, the risk of death is apparent, and the party
inflicting it is guilty of this offence.
Art. 530. In all the examples of the different kinds of offences desig-
nated as negligent homicide, it is understood, as an essential part of such
case, that there is no intent to kill, and in all (except the example taken
from the law of self defence) that there was no design to do a bodily
harm.
§ 4.
Of negligent homicide in the performance of unlawful acts.
Art. 531. All the definitions, rules, and provisions, with respect to
negligent homicide in the first and second grades, except those which
regard the legality of the act, in the doing or attempt to do which the
homicide is committed, apply to the homicides described in this divi-
sion of the offence, in all things in which they are not contrary to the
following provisions.
Art. 532. Where negligent homicide in the second grade has been
committed, in the doing or the attempt to do an act which is an injury,
but not an offence, one-fifth shall be added to the punishment. If the
act done or attempted, be a misdemeanor, but not an offence against the
person, one-fourth shall be added. If it be one of those designated as
an offence against the person, but not one of those offences designated as
murder, one-half shall be added. If it be a crime punishable with im-
prisonment at hard labour for any term less than life, the punishment
shall be doubled, and the imprisonment shall be at hard labour.
if the act done or attempted to be done, be a crime punishable with
imprisonment for life, the homicide shall be punished by imprisonment
at hard labour for life.
And
Art. 533. It is intended, by the preceding article, that the homicide
must have been done in the attempt to offer the injury or commit the
offences therein specified, that is to say, must have been the conse-
quence of some act done for the purpose of offering or committing
such other injury or offence. If the act which caused the death had
no connexion with the injury intended to be offered or committed, it
does not come within the definition. The same rule of construction
applies to the words, "in the doing or in the attempt to do," whenever
they are used as giving a character to any act actually done.
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§ 5.
Of criminal voluntary homicide.
Art. 534. Voluntary homicide is a CRIME in all cases, where it is
neither justifiable nor excusable, according to the rules heretofore laid
down. There are two degrees of this species of homicide, each degree
forming a distinct class of crime. They are,
1. Manslaughter.
2. Murder.
Art. 535. Manslaughter is voluntary homicide, committed under the
immediate influence of sudden passion, arising from an adequate cause.
In considering and applying this definition, the following rules are
to be observed.
1. To constitute manslaughter, the homicide must be intentional.
Those involuntary homicides, occasioned by want of due care, or oc
curring in the prosecution of some unlawful act, which were heretofore
distinguished by this name, are in this code distinct offences.
2. Manslaughter is homicide committed under the immediate influ-
ence of sudden passion; all the terms of this part of the definition are to
be strictly observed in its application to any particular act. If the
passion be not sudden, that is to say, arising in the same interview in
which the act was committed, but entertained before that time; or if
thus arising, and the act be not done under the immediate influence of
that passion, but after such an interval of time as in the common course
of human feelings would give time for reflection, or with the interven-
tion of such circumstances as must naturally produce it: in either of
these cases the crime is not manslaughter. That the act be done "un-
der the influence" of such passion, is also a necessary part of the de-
finition. This means, that the passion is the cause of the act
merely that it is done during the time that the mind is agitated by
passion; from which it follows, that passion against one will not qualify
the homicide of another with the appellation of manslaughter.
not
3. The passion intended by the above definition, includes all those
called choler, rage, anger, sudden resentment, terror or fear; their great
characteristic being a sudden and temporary agitation of the mind, that
renders it incapable of cool reflection during the prevalence of this
passion.
4. It is not sufficient that the act be committed under the influence
of passion, to give to homicide the character of manslaughter: the pass-
ion must have an adequate cause. The law admits only such as ade-
quate causes, which it defines as such.
The cause, to be adequate, must be one that in men of ordinary
tempers, commonly produces an irritation of mind which renders them
incapable of calculating the consequences of their acts. No words
whatever are an adequate cause; no gestures, merely showing derision
or contempt.
No assault and battery, so slight as to show that the intent was not
to inflict great bodily pain.
An assault and battery made by the deceased, causing great pain or
bloodshed, is an adequate cause.
A serious personal conflict, in which great bodily pain was inflicted
by means of a weapon or other instrument, used by the person killed,
CODE OF CRIMES AND PUNISHMENTS.
449
or by means of a great superiority of personal strength or skill, is an
adequate cause, even if the person guilty of the homicide were the ag-
gressor in such conflict, or in any manner provoked the contest, pro-
vided such aggression or provocation was not made with the intent to
bring on a conflict for the purpose of killing.
A discovery of the wife of the accused, in the act of adultery with the
person killed, is an adequate cause.
Passion, occasioned by lawful correction of the person accused, is not
an adequate cause.
Provocation given by a relation in the ascending line to his descend-
ant, is not an adequate cause; although it would have been such, if given
by a person not standing in the same relation. This does not extend
to relations by affinity only.
Injury to property, unaccompanied by violence, is not an adequate
cause.
Passion occasioned by the legal performance of duty by an officer of
justice, or other person legally authorized to perform any executive
duty of justice, is not an adequate cause.
Art. 536. Manslaughter is punished by imprisonment not less than
one nor more than five years, at hard labour or in close confinement.
§ 6.
Of murder.
Art. 537. Murder is homicide, inflicted with a premeditated design,
unaccompanied by any of the circumstances, which, according to the
previous provision of this chapter, do not justify, excuse or bring it
within some one of the descriptions of homicide herein before defined.
Art. 538. There are different grades of guilt in the commission of
this crime, which are called,
Infanticide,
Assassination,
Murder under trust,
Parricide.
Art. 539. Infanticide is the murder of an infant for the purpose of
concealing its birth.
Art. 540. Murder is characterized as assassination, either by the pur-
pose intended to be obtained, by the means used to effect it, or by the
condition of the person murdered.
1. By the purpose.
When the murder is committed for the purpose of effecting another
crime.
When it is committed for the purpose of concealing another crime
previously committed.
When it is committed for the purpose of obtaining an inheritance.
When it is committed for HIRE; and in this case, he who gives and
he who receives the reward is guilty of assassination.
2. By the means used.
When the murder is done by LYING IN WAIT; by burning the house
in which the person murdered is; by POISON.
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+
3. By the condition of the person murdered.
When the crime is committed on a woman, a man above the age of
seventy, a minor under the age of sixteen, a person asleep, or in a dwell-
ing-house by night, or travelling on the high road.
Art. 541. Murder, under trust, is that which is committed by persons
under the following relations to the person murdered, that is to say:
husband, wife, tutor or curator, ward, collateral relation within the
second degree inclusive, master, servant, schoolmaster, host, guest, phy-
sician or surgeon; and finally, if the murder be committed by one
upon another, who has reposed confidence of safety in him, on an ex-
press or implied promise of fidelity or protection. Murder, committed
by a guide or conductor on the land, or by the master of a vessel by
water, upon a traveller, whom he has undertaken to conduct, are ex-
amples of this last description of murder under trust.
+
Art. 542. Illegitimate children of the same mother, and of the same
father by another mother, if acknowledged by the father, are compre-
hended in the above description of collateral relations.
Art. 543. The word "host," includes as well the gratuitous receiver
of the guest, as the one who receives him for hire.
Art. 544. Parricide is murder committed by a relation by consan-
guinity, in the ascending line upon his descendant, or by a descendant
upon his relation by consanguinity, in the ascending line.
Art. 545. Illegitimate children, and such of their parents as have ac-
knowledged them, are included in the above definition.
Art. 546. Punishment for murder is imprisonment for life.
Each of the aggravated species of murder described in this section,
has appropriate privations and aggravations of discipline allotted to it
in the Code of Reform and Prison Discipline.
Art. 547. An attempt to murder, by administering poison, although
it fail in its effects, shall be punished by imprisonment at hard labour,
for fifteen years.
SECTION VIII.
Of suicide.
Art. 548. No punishment can be inflicted on him who commits this
act; and by the principles on which this system is founded, the law
cannot make an innocent survivor suffer for the rashness of another.
But any one who shall aid in the act of suicide, or who shall provide
the means of executing it, knowing the purpose for which they were
intended, or be guilty of any omission with respect to the act or means
of suicide, that constitutes homicide by omission, according to any of
the preceding provisions of this chapter, shall be imprisoned, at hard
labour, not less than three nor more than six years.
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451
CHAPTER VI.
Of duels.
Art. 549. If any person shall use any insulting words or gestures of
or to, or make an assault upon another with intent, either to provoke
any one to give a challenge to FIGHT A DUEL, or as an alternative, to
dishonour him, he shall be fined not less than fifty, nor more than three
hundred dollars, or imprisoned not less than five, nor more than thirty
days, in close custody.
Art. 550. If the defendant, in any prosecution under the last preced-
ing article, shall make any denial, explanation, or acknowledgment,
that the court shall think ought to satisfy the honour of the prosecutor,
they shall direct the same to be recorded and published, with their
judgment declaring the same to be satisfactory; and may, at their dis-
cretion, direct the defendant to be dismissed, on the payment of costs.
Art. 551. Whenever judgment shall be pronounced on, for any offence
under the said article, it shall contain a clause that it shall be void as
to every thing but costs, in case the defendant shall make such ac-
knowledgment as shall be satisfactory to the prosecutor.
Art. 552. No conviction on judgment for any offence under the said
article, shall be a bar to any prosecution or suit for defamation or assault
for the same cause, unless the satisfaction made by the defendant shall
be accepted, as is provided in the last preceding article.
Art. 553. In case any offence under the said article should imply a
charge affecting the honour or reputation of the person making the com-
plaint, and the investigation on the trial show such charge to be un-
founded, the court shall make that declaration in the sentence, and
cause the same to be published at the expense of the defendant; and if
the party complaining request it, the question, whether the charge be
true or false, shall be decided by the jury.
Art. 554. Whoever shall give a challenge to fight a duel, or shall, on
receiving such challenge, ACCEPT the same, shall be imprisoned, in
close custody, not less than two, nor more than six months, and be
suspended from his political rights for four years.
Art. 555. Whoever shall fight a duel, if he in such fight inflicts no
wound, shall be imprisoned, in close custody, not less than six, nor
more than twelve months, and shall be suspended from his political
rights for six years. If he wound his adversary, and such wound do
not occasion death, or any permanent bodily disability, the imprison-
ment shall not be less than twelve, nor more than eighteen months,
and the suspension for eight years. If he fight a duel, and shall inflict
a wound on his adversary that causes a permanent disability, he shall
be imprisoned not less than twelve months, and be suspended from the
exercise of his political rights, and his civil rights of the first and third
class, for seven years. If in such fight he kill, or inflict a mortal wound
on his adversary, he shall be imprisoned not less than two, nor more
than four years, and forfeit for ever his political rights, and his civil
rights of the first and third class. And if such death or mortal wound
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be inflicted by treachery, he shall be deemed guilty of murder by assas-
sination, and suffer the punishment in this code directed to be inflicted
on those convicted of that crime.
Art. 556. If any one shall advise another to fight a duel, or shall use
any reproachful or contemptuous language to or concerning any one for
not sending or accepting a challenge, or for not fighting a duel, he shall
be fined not less than fifty, nor more than five hundred dollars, or be
imprisoned not less than thirty days, nor more than six months.
Art. 557. If any one shall bear a challenge, either written or verbal
to another, knowing the intent with which it was sent, he shall be fined
not less than one hundred, nor more than one thousand dollars, be im-
prisoned, in close custody, not less than two, nor more than six months,
and suspended from his political rights for three years.
Art. 558. If a challenge shall be given and accepted in this state,
and the parties go out of the state and fight a duel, the punishment for
giving or accepting such challenge, shall be the same as if the whole
offence were committed within the state.
Art. 559. It is an offence within the meaning of the first article of
this chapter, if the insulting words or gestures be used relative to, or
the assault be committed upon, either the person whom it is intended
to provoke, or any other so nearly connected with or related to him as
to show the intent in the said article expressed.
The dishonour, in the same article, means a loss of the esteem of
those who think that offences of that nature ought to be avenged by a
challenge to fight a duel.
Art. 560. The words "to fight a duel," in this chapter, are used in
their common and general acceptation: they mean, to enter into a vo-
luntary combat, one man against another, with deadly weapons.
Art. 561. A challenge is any proposal, either 'verbal or written, or
by message, in whatever language it may be couched, to fight a duel,
provided that, from the circumstances attending the proposition, it ap-
peared to be so understood by the party accused whether he be the
party giving or the party accepting it.
Art. 562. The acceptance of a challenge, is an agreement to the pro-
position to fight a duel, either given by express words or by other
terms, either written or oral, from which such agreement may clearly
be inferred on by circumstances which show such agreement.
Art. 563. It is treachery, if the death be occasioned by the breach of
any rules made for conducting the combat, or by any other advantage,
which, although not expressly provided against in those rules, was yet
one that could not be supposed to have been intended to be given.
Art. 564. It is assassination, if the mortal wound be intentionally in-
flicted on a party, after he is incapable of further resistance, either
from being disarmed, or any other circumstance, with a knowledge of
such incapacity by the party inflicting it, whether it be done in pursu-
ance of any previous rule for the combat or not.
Art. 565. It is assassination, and not a duel, if the death or mortal
wound be inflicted by a party who has obtained the power of inflicting
it without risk to himself, by the effect of a chance previously agreed
Death inflicted by a party who has obtained a loaded pistol by a
chance agreed on, while the one used by his adversary is not loaded, is
an example of what is intended by this rule.
on.
Art. 566. In order more effectually to secure the execution of the pro-
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453
visions of this chapter, the attorney general and district attorneys of
this state, and all officers of justice when they are sworn into office,
and such of them as are in office at the time of the promulgation of
this code, or within fifteen days afterwards, and all grand jurors when
they are sworn, shall sign a declaration in the following form :-“I
declare, that I consider the obligation, which my duty requires, of bring-
ing to justice all offenders against the laws, as containing no reservation
with respect to duels. And I promise on my honour that I will, within
the local bounds to which my official functions extend, by all lawful
means prevent so far as shall be in my power, any duel which I may
have reason to suppose is intended, and prosecute all offences which
come to my knowledge, against the sixth chapter of the nineteenth
title of the second book of the Code of Crimes and Punishments of this
state, entitled, Of Duels.""
6
The word "prosecute," in the said declaration, shall, in the case of
grand jurors, be changed for "indict;" and in the case of officers of
justice, it shall be changed for the words "enter complaint against.”
Art. 567. And all officers, civil or military, judicial or executive,
now in office, shall, within thirty days after the promulgation of this
code, if in office at that time, and those appointed or elected afterwards,
shall, at the time they take their oath of office, and before they enter
on the duties of their office, take before a magistrate, and subscribe
a declaration, under oath, in the following form :-"I do solemnly
swear, that I have not fought a duel, or given or accepted a challenge to
fight a duel, since the promulgation of the Code of Crimes and Punish-
ments of the state of Louisiana; and that I shall hereafter consider
myself as bound by the ties of honour, as well as the sanction of this
oath and of the laws, not to commit any offence against the provisions
of the sixth chapter of the nineteenth title of the second book of the
said code, entitled, Of Duels.""
And every person elected or chosen
to any office, who shall refuse or neglect to take such oath and sub-
scribe such declaration, within the period and at the time above direct-
ed, and to send the same to the office of the secretary of state, as is
directed in the next article, shall be considered as having resigned or
refused to except the office to which he is elected.
C
Art. 568. As to all officers appointed or elected, the oath and declar-
ation aforesaid shall be taken and subscribed before the magistrate who
administers the oath of office, and shall be deposited, recorded and
transmitted, as is by law directed concerning oaths of office.
And as
to all officers in office at the time of the promulgation of this code, the
oath shall be taken before any magistrate, and deposited, recorded and
transmitted, as is now by law directed with respect to oaths of office.
TITLE XX.
OF OFFENCES AFFECTING INDIVIDUALS IN THEIR PROFESSION OR TRADE.
Art. 569. All direct offences of this nature are comprehended in the
twelfth and eighteenth titles, and the chapter "Of Conspiracies," and
those having the same effect indirectly, in other titles of this book.
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TITLE XXI.
OF OFFENCES AGAINST CIVIL AND POLITICAL RIGHTS AND CONDITIONS.
CHAPTER I.
Of the substitution, exposure of infants, and of fulsifying registers.
Art. 570. If any person to whom an infant, under the age of six years,
shall be confided for nursing, education, or other purpose, shall, with
intent to deceive the parents, tutors, or curators of such infant, substi-
tute, or attempt to substitute another child in the place of the one so
confided, he shall be imprisoned at hard labour not less than three nor
more than seven years.
Art. 571. The word substitute in this chapter means, to deliver to
the person confiding the child, another instead of the one so confided,
under the pretence that it is the same.
Art. 572. If any one, to whom such a child shall be so confided, or
its father or mother, shall expose or desert such child, with intent
wholly to abandon it, in a place where its life will be endangered, the
punishment shall be imprisonment at hard labour not less than five nor
more than ten years.
Art. 573. But if such abandonment be made without the knowledge
of the father, mother, tutor or curator of the child, by the person to
whom it shall have been confided, by fraudulently depositing it in an
inhabited house, one half of the punishment, mentioned in the last
article, shall be inflicted.
Art. 574. If such child shall die in consequence of such exposure, it
is infanticide, murder, or murder under trust, depending on the person
who commits the crime. If it receive any other bodily injury, the
offence shall be punished in the same manner as the same injury would
be, had it been done with intent to kill.
Art. 575. If any one shall, for the purpose of intercepting an inheri-
tance in the whole or in part, fraudulently produce an infant, false-
ly pretending it to be born of parents, whose child would stand in the
order of successsion to such inheritance before or equally with another
person, whose condition and civil rights it was intended to intercept,
the persons so offending, and those who shall aid and assist in the de-
ception, shall be imprisoned in close custody not less than six nor more
than twelve months, and shall be suspended from the exercise of their
civil rights of the first and third class for five years.
If any one shall, for the purpose of injuring another in his civil or
political rights, or in his right to property, destroy, or alter any cer-
tificate of birth, or marriage, or burial, he shall be imprisoned not less
than seven nor more than fifteen years at hard labour, and shall forfeit
his political rights.
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455
If any person, whose duty it is, by law, to make a record of births,
marriages, or deaths; or any curate, priest, minister, or parson, who
in any church or religious congregation, is charged with keeping a
register of births, marriages, or funerals, celebrated for the members of
such church or religious congregation, shall fraudulently make a false
entry in such record or register of any such birth, marriage, death, or
funeral, with intent to injure any one in his condition, civil or political
rights, or his right to property, he shall be imprisoned at hard labour
not less than seven nor more than fifteen years.
Art. 576. Other offences affecting political rights will be found in
the title of offences against the right of suffrage.
CHAPTER II.
Of bigamy.
Art. 577. A person having a wife or husband living, who shall,
without having a reasonable cause to believe such wife or husband to be
dead, contract a second marriage, is guilty of bigamy, and shall be im-
prisoned at hard labour not less than one, nor more than five years.
Art. 578. If the first wife or husband had, at the time of the sub-
sequent marriage, been absent for five years, and during that time the
accused had not received any intelligence of his or her being alive, this
shall, for the purposes of this chapter, be considered such a reasonable
belief of death, as to take away all criminality from the act.
Art. 579. What other cause to believe the death of the former hus-
band or wife shall be deemed a reasonable cause, is matter of fact, to
be decided according to the circumstances of the case.
Art. 580. It is not necessary, to constitute this offence, that the first
marriage should have been contracted within this state; but it must,
wherever celebrated, have been a valid marriage, according to the
laws of the country in which it was contracted.
Art. 581. The subsequent marriage must also be made according to
the forms prescribed by law to give validity to marriages in this state.
Art. 582. If a citizen of this state, residing therein, having a hus-
band or wife living, either here or elsewhere, shall go out of this state,
and contract a second marriage, with the intent of returning to reside
within this state, and shall so return he or she shall be deemed guilty
of the crime of bigamy.
Art. 583. If the first marriage be not null in itself, but only void-
able, a second marriage, during the lives of the parties to the first, is
bigamy; unless such first marriage had been declared void by a com-
petent authority, or had become so by the operation of law or the act
of the party, before the time of contracting the second marriage.
Art. 584. No other divorce but one, from the bonds of matrimony,
is such a dissolution of the first marriage as will exempt the party from
the guilt of bigamy or a second marriage, while both parties to the first
are living.
Art. 585. A third marriage, during the lifetime of the parties to the
second, is bigamy, although the second marriage was contracted during
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the lifetime of the parties to the first, and in a manner to make it biga-
my; and in case of three or more successive marriages, any of the
persons, with whom the party accused, contracted either of the former
marriages, being alive, at the time of celebrating a subsequent one, he
or she may be convicted of bigamy.
TITLE XXII.
of offenceS AFFECTING PERSONS IN THEIR PROFESSION OR TRADE.
THE offences coming under the purview of this title, will be found
in the titles, "Of offences affecting commerce and manufactures," and
in the chapter of "Conspiracies.
""
TITLE XXIII.
OF OFFENCES AFFECTING PRIVATE PROPERTY.
CHAPTER I.
Of burning and other malicious injury to property.
Art. 586. If any one shall MALICIOUSLY SET FIRE to any DWELLING-
HOUSE, with intent to destroy the same; or shall destroy such house by
an explosion of gunpowder or any other explosive matter, he shall be
imprisoned, at hard labour, during life. If the house be not a dwell-
ing house, but contain personal property of the value of one hundred
dollars, he shall be imprisoned, in like manner, not less than seven
nor more than fourteen years: and if it be empty, or contain personal
property of less value than one hundred dollars, the punishment shall
be a like imprisonment, not less than five nor more than ten years.
Art. 587. A house, within the meaning of this chapter, is any edifice.
so built as to come within the denomination of real estate, according
to the definition of that term in this code, being closed in on all sides,
and having the area, which is enclosed by its sides, covered with a roof.
This definition excludes a tent, a booth or an open shed.
Art. 588. A dwelling-house is one in which some person habitually
sleeps or eats his meals, or one that is built and intended for that pur-
pose, although not actually inhabited.
Art. 589. This offence of setting fire to a dwelling-house, is also
committed by setting fire to any building that communicates, by any
combustible matter with the inhabited building, or that is so near to
it as, if the one burns, to cause the other to take fire.
CODE OF CRIMES AND PUNISHMENTS.
457
Art. 590. If any one shall, in like manner and with like intent as is
above expressed, set fire to any building, not coming within the de-
scription of a house, or to any stack of grain or hay, any heap of fire-
wood, or timber, or other collection of combustible produce of the earth,
standing or being on the land of another, and of the value of ten dollars
or upwards—he shall be imprisoned not less than six nor more than
twelve months, or fined not more than five hundred dollars, or both,
at the discretion of the court.
Art. 591. The intent must be malicious; therefore, if the house be
the property of the person who does the act, and no other person has
any interest therein, he is guilty of no offence. But if there be any
other person interested as joint owner, usufructuary, lessee, or in any
other manner whatever; or if another have an incumbrance on the
house, or have made insurance thereon-the offence is incurred,
although the person committing the act may have some estate in the
house. This article applies to all the offences described in this chapter.
Art. 592. If one set fire to his own house, with the intent that the fire
shall communicate to that of another, and it does so communicate—he
is guilty of this offence.
Art. 593. The offence is not complete merely by the burning of the
combustible matter placed for communicating the fire. It must actually
have communicated to the house; but it is not necessary for this pur-
pose, that it should be completely destroyed.
Art. 594. If any building destroyed by fire, contrary to the pro-
visions of this section, contain any DOMESTIC ANIMALS, which are
destroyed with the building-the punishment shall be increased one-
half.
Art. 595. If any one shall, designedly, and with intent to injure,
illegally set fire to, or destroy or injure by explosion, any ship or other
vessel, boat, flat-boat or raft, which with the cargo, if any there be, is of
the value of one hundred dollars or upwards-he shall be imprisoned, at
hard labour, not less than three nor more than seven years.
Art. 596. The "intent to injure," mentioned in the articles of this
section, means an intent to cause a PECUNIARY loss to some person
(other than the offender) having an interest in or upon the property
when the act is designedly done. The circumstance that another has
an interest in or upon it, is conclusive proof of the intent to injure.
Art. 597. Where death is occasioned by any of the offences described
in this section, the offender is guilty of murder; and of assassination, if
he intended the death of the party.
Art. 598. If any bodily injury, less than death, is suffered by the
fire or explosion, in the execution of the offence-the punishment shall
be doubled in all cases where the punishment is less than imprisonment
for life.
Art. 599. If any of the offences described in this section be com-
mitted during the NIGHT, the punishment shall be increased one-half.
Art. 600. Whoever shall MALICIOUSLY destroy any personal property
exclusively belonging to, and in the possession of another, if of any of
the kinds herein before described, by any other means than by fire, or
if of any other kind, by any means whatever, being of the value of ten
dollars or more; or in like manner injure it to that amount, he shall
be imprisoned not less than one month, nor more than one year, or
shall be fined not exceeding five hundred dollars, or both, and the im-
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prisonment or part of it may be in close custody. If the offence de-
scribed in this article be committed by poisoning, killing or disabling
any animal of any kind usually employed in husbandry, or raised for
sale, the punishment shall be doubled, but shall not be less than impri-
sonment for thirty days in close custody, or a fine of two hundred and
fifty dollars.
Art. 601. If any one shall MALICIOUSLY destroy the fences or en-
closures of any real property belonging exclusively to another, and in
his separate possession, or shall destroy any trees, shrubs or any CROP
of any kind growing thereon, if the fences or other things so destroyed
are of the value of ten dollars or upwards, he shall be imprisoned not
more than one year, or fined not exceeding five hundred dollars, or
both; and the imprisonment, or any part thereof, may be in close
custody.
Art. 602. If any one shall MALICIOUSLY destroy any original written
obligations or original acts, giving an interest in, or a right to any real
or personal property, of the value of one hundred dollars, belonging to
another, or shall in like manner destroy the copy of any such obligation
or act, when by reason of the destruction of the original or other legal
cause, such copy is the only proof of the obligation or act, he shall be
imprisoned not less than one month, nor more than one year, or be
fined not less than fifty, nor more than one thousand dollars, or both,
and the imprisonment or any part of it may be in close custody.
Art. 603. If any one shall maliciously or fraudulently remove or
destroy any post, stone, tree, or other thing serving as a land-mark to
designate a boundary between two different tracts of land, he shall be
imprisoned at hard labour not less than one nor more than three years,
and shall forfeit his political rights.
Art. 604. Injuries to property by negligence are not the object of
penal law.
CHAPTER II.
Of house-breaking.
Art. 605. Whoever enters a HOUSE secretly, or by force, or threats, or
fraud, during the NIGHT, or in like manner enters a HOUSE by day, and
conceals himself therein until the NIGHT, with the INTENT in either case
of committing a crime, is guilty of the crime of house-breaking, and
shall be imprisoned at hard labour not less than ten nor more than fif-
teen years.
Art. 606. The qualifications of secrecy, force, or fraud, as applied
to the entry, in the description of this offence, are intended to exclude
every kind of entry but one made by the free consent of the occupant,
or of one authorized to give such consent for him, fairly obtained and
expressly or impliedly given.
Art. 607. Although a consent be given to an entrance into one part
of a house, yet an entrance into any other part, by any of the means
and with the intent described in the first article of this section, con-
stitutes the crime of house-breaking.
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459
Art. 608. The term "house," as used in this chapter, comprehends.
all such as are built for public as well as private use, whether the pro-
perty of the state, the United States, or any public or private corpora-
tion or society.
Art. 609. The entry, in the description of this offence, is not confined
to the entrance of the whole body; the introduction of any part, for
the purpose of committing a crime, is sufficient.
Art. 610. If any one shall discharge any fire-arms, or any missile
weapon, into a house, with the intent of doing bodily injury to any
one in such house, or introduce any instrument for the purpose of
drawing out any personal property, it is an entry intended by the de-
scription of this offence, although no part of the body of the offender
should come within the house.
CHAPTER III.
Of the acquisition or appropriation of property by fraud or force.
Art. 611. Offences of this nature may be committed in the follow-
ing manner.
1. By the fraudulent appropriation of personal property, which had
been delivered to the offender for another purpose.
2. By the like appropriation of property which came to the possess-
ion of the offender by finding.
3. By the violation of epistolary correspondence.
4. By obtaining personal property under false pretences.
5. By theft or robbery.
6. By receiving property knowing it to be fraudulently obtained.
SECTION I.
Of fraudulent breach of trust.
Art. 612. The following are the acts which may severally constitute
this offence:
1st. The fraudulent appropriation of personal property by any one,
to whom it shall have been delivered on deposite, sequestration, pledge,
or to be carried or repaired, or on any other contract or trust, by
which he was bound to deliver or return the thing received.
2d. The fraudulent appropriation of certain specific personal pro-
perty by any one, to whom it shall have been delivered on a contract
of loan for use, or of letting and hiring, after the time at which, accord-
ing to the contract, the right of use acquired thereby has ceased, or
before that time, by a disposition not authorized by such contract.
Art. 613. These two cases refer to a receiving, with an intent to
comply with the contract under which the delivery is made, and a
subsequent determination of fraud; if the contract be intended merely as
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CODE OF CRIMES AND PUNISHMENTS.
the means of procuring possession, with the intent of making a fraudu-
lent appropriation, it is theft.
Art. 614. The punishment for the offences described in the first arti-
cle of this section, is imprisonment in close custody, not exceeding
six months, if the property be of the value of thirty dollars or under;
and if above that value, the like imprisonment, not exceeding one
year.
Art. 615. The giving to another the charge or care of property,
subject to the immediate orders of the owner, or the use of it in his
presence, or for the purposes of his trade, is not a delivery within the
meaning of any articles describing this offence. A fraudulent appro-
priation of property so placed is theft.
SECTION II.
Of fraudulent appropriation of property found.
Art. 616. If any one shall come, by finding, to the possession of any
personal property, of which he shall know, or have reason to believe
any DESIGNATED person to be the owner, and shall fraudulently appro-
priate the same, or any part thereof, he shall be imprisoned in close
custody, not less than sixty days nor more than six months, and shall
be fined in a sum equal to double the amount of the property so appro-
priated.
Art. 617. Where property has been casually lost, and the finder has
no reason to believe any designated person to be the owner of the pro-
perty found, if it is of the value of more than twenty dollars, and the
finder shall conceal the same, and appropriate it to his own use, he
shall be fined in a sum equal to double the amount of the property ap-
propriated.
Art. 618. If the property be found in a place where property of the
same description is usually placed, or suffered to be; or if in an unu-
sual place, in one where the finder knows it to have been designedly
put by the owner; or if the property be domestic animals, and they
are found in a place in which they are usually kept, or to which they
are suffered to go, or may reasonably be supposed to have strayed, this
is not finding within the meaning of the preceding articles; and if
the person taking the property fraudulently appropriate it, he is
guilty of theft.
Art. 619. If any one shall fraudulently appropriate property, taken
or driven on shore from any vessel, wrecked, stranded or burned, on
the sea-coast, or on any of the rivers, lakes or harbours of this state,
he shall be imprisoned, at hard labour, not less than one nor more than
three years.
Art. 620. The property, described in the last preceding article, shali
be presumed to be fraudulently appropriated, within the meaning of
that article, in all cases where the property is concealed and the direc-
tions contained in the Code of Procedure, on the subject of wrecked
property, are not pursued.
CODE OF CRIMES AND PUNISHMENTS.
461
SECTION III.
Of the violation of epistolary correspondence.
Art. 621. If any one shall open and read, or cause to be read, any
sealed letter, without being authorized so to do either by the writer of
such letter or the person to whom it is addressed, or by law-he shall
be fined not more than fifty dollars, or imprisoned not less than ten
nor more than thirty days.
Art, 622. Whoever shall MALICIOUSLY PUBLISH OR CIRCULATE the
whole or any part of a letter so opened, knowing the manner in which
it was obtained, and without legal authority-shall be fined not less
than fifty nor more than two hundred dollars, or imprisoned not less
than one nor more than three months.
Art. 623. If property of any assignable value be taken from such
letter, it is theft.
Art. 624. If any one shall TAKE any letter, whether sealed or not,
or any writing whatever, from the legal possession of another, without
his consent, and shall maliciously publish the same-he shall be fined.
not less than one hundred nor more than five hundred dollars, or im-
prisoned not less than one nor more than six months.
SECTION IV.
Of obtaining property by false pretences.
Art. 625. If any one, with a fraudulent intent, shall obtain any per-
sonal property, or the release of any right, of any ASSIGNABLE value,
with the consent of the owner or possessor thereof, by means of any
false pretences, without the use of which such consent would not have
been given-he is guilty of this offence.
Art. 626. No mere declaration of the value, or cost, or quality, or
quantity of the property sold, although such declaration should be false:
no promise of a consideration for the delivery of personal property,
although such promise be not performed: no mere declaration that
the party is able to pay, or perform or deliver the consideration
false pretence under the above definition.
is a
Art. 627. The owner's consent to the delivery of the property is an
essential part of the definition of this offence, and a characteristic that
distinguishes it from theft. A temporary possession for examination,
or any other purpose, while the contract for the transfer is pending,
is not such a delivery, by consent, as is required by the description of
the offence. And if the fraudulent appropriation be made before such
final consent be given, it is theft.
Art. 628. This consent is presumed to have been given, whenever
the consideration is received, and the property is left, or put in the
power of the person to whom by the purport of the contract it appears
to be transferred, although such consideration should prove worthless
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CODE OF CRIMES AND PUNISHMENTS.
or fraudulent. It is also presumed to have been given whenever cre-
dit has been given for the price, however short the time.
Art. 629. Credit is presumed to have been given when, although the
sale or other transfer was made on a stipulation of paying cash, the
seller shall have taken a draft or order, or other security for the amount,
and voluntarily left the property in the hands of the vendor.
Art. 630. It is a false pretence for any one to assign or deliver any
written contract as his own property, when, to his knowledge, it be-
longs to another bearing the same name.
Art. 631. It is a false pretence to assume any false description, which
would, if true, give greater credit to the party assuming it. By "de-
scription," is meant profession, trade, office or employment.
Art. 632. If any one shall commit this offence by falsely personating
another, he shall incur the highest punishment designated for the same.
This modification of the offence is committed,
1. By assuming to be another, whose name or credit shall induce.
the owner to deliver the property.
2. By assuming to be another person bearing the same name as the
person who commits the offence.
Art. 633. The assumption need not be by positive words; it is suf-
ficient if, by any device whatever, the person delivering the property,
or releasing the right, is designedly made to believe that he who re-
ceives such property, or release, is the person whose name or character
he assumes.
Art. 634. It is an offence, under the first article of this section, after
a sale of personal property and before delivery, to substitute other pro-
perty of less value than that sold, with intent to defraud the purchaser
of the price paid, or to be received.
Art. 635. It is a false pretence to promise immediate payment for
personal property, and, after obtaining possession thereof, to refuse
either to restore the property or to pay the price. The offence, de-
scribed in this article, is committed by a refusal to pay or to deliver
the property, on demand, at any time within three days after the pur-
chase, if the property be then in the possession of the purchaser, or
within one hour if demand be then made, whether the property be
in his possession or not.
Art. 636. It is sufficient to make the party liable under the preced-
ing article, if the demand be made at the place where payment was
promised to be made, and the not making the payment there is a suf-
ficient refusal within the meaning of the said article.
Art. 637. It is a false pretence to give in payment, for any personal
property sold and delivered as for cash, any check, bill or order, which
the person, giving the same, affirms will be paid at sight, but which he
shall, at the time, know to be of no value; unless such check, bill or
order, be taken on the credit of the parties thereto, or some of them,
and it shall be presumed to have been so taken whenever it is made
payable otherwise than at sight or on demand.
Art. 638. It is a false pretence to sell any merchandize by a sample,
taken not from that actually sold, but from other merchandize of a
greater value, with intent to defraud.
Art. 639. It is a false pretence to produce a false invoice of mer-
chandize sold, or to produce an invoice of other goods of the same
description, affirming it to be the true invoice of the goods sold, for
CODE OF CRIMES AND PUNISHMENTS.
463
the purpose of deceiving the purchaser as to the cost and value of the
property purchased.
Art. 640. It is a false pretence to make, or knowingly to produce,
any false letter or other paper, not amounting to forgery, in order to
influence another in the purchase or sale, or other disposition of pro-
perty.
Art. 641. It is obtaining property under a false pretence to procure
it by any game, either of skill or chance, or of both, by any other means
than those which are given by the regular chances of the game, if it be
one of chance; or by the fair exercise of skill and knowledge of the
game, if it be not a gane of hazard.
Art. 642. It is a false pretence fraudulently to make any false reports,
for the purpose of raising or depressing the price of the public funds, or
the stock of any incorporated company; or to circulate them, knowing
them to be false.
Art. 643. The enumeration, contained in this chapter, and in other
parts of the code, of certan acts which shall constitute the offence de-
scribed, does not exclude other acts coming within the definition. Nor
does the declaration, that certain other acts are not considered as of-
fences, restrict the exceptior to those particular acts.
Art. 644. If the value of the property, obtained by an offence under
this section, shall not amount to more than thirty dollars, the punish-
ment shall be imprisonment, at hard labour, not exceeding three years;
and if the value exceed that sim, the imprisonment shall not be less
than one nor more than four years.
SECTION V.
Of theft.
Art. 645. Theft is the FRAUDULENTLY TAKING OF CORPORAL PER-
SONAL PROPERTY, having some ASSIGNABLE value, and belonging to
another, from his possession and without his assent.
Art. 646. The subject on which this offence can operate, is exclusively
PERSONAL PROPERTY; but it embraces every species of that property
that can be taken, and excludes only incorporeal rights.
Art. 647. The "TAKING," mentioned in the description of this
offence, is that which designates it from the other fraudulent appro-
priations of property heretofore described. The following rules and
illustrations show the nature of the taking intended, and the circum-
stances under which it constitutes the offence:
1. There must be to constitute this offence a taking, and that taking
must be from the possession of the owner; therefore, although there has
been a fraudulent appropriation, yet, if the possession was acquired by
the accused in such a way as to bring the case within the description
of either of the offences made punishable by the preceding part of this
chapter, it is not theft.
2. But every fraudulent taking from the possession of the owner, and
subsequent appropriation of personal property, which does not come
within the description of some one of the offences described in the
former sections of this chapter, is either theft or robbery.
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3. If any servant or clerk, or person employed as such by any per-
son, receive on account of his employers, from any other person, or
from the employer himself, in trust or charge, to be kept or disposed
of under the direction of the employer, any such property as is de-
scribed in the definition of this offence, the possession of such clerk or
servant is, as relates to this offence, the possession of his employer; and
if the servant or clerk fraudulently appropriate it, it is theft.
4. Whenever the delivery is extorted by fear, it is a taking, within
the definition of this offence, and one of those circumstances which con-
stitutes the offence of robbery.
5. The possession of a factor or agent, entrusted with the sale or
other alienation of property, is not such a possession of the owner as
will make the factor or agent guilty of this offence, if he appropriate
the proceeds.
6. Taking alone, without carrying away, is sufficient within the de-
finition.
7. Taking may be either by a removal, or simply by laying hold
upon the article, either directly with the hand or by means of any in-
strument, in such a way as to evince a design to remove it.
8. The offence is complete by the taking; therefore, a voluntary re-
turn of the property will not prevent conviction; but it shall lessen the
punishment one half.
9. No one can be convicted of theft or robbery for any taking of
property, in which he has a joint interest with the person from whose
possession it was taken.
10. He who has the general property, of personal property, may
commit this offence, by taking the same fraudulently, from one who has
a special property in it, with intent to make him answerable for the
value.
11. If one of several persons, having a joint interest in personal pro-
perty, either as partners, husband and wife, or otherwise, deliver it
voluntarily to another, who takes it with a fraudulent intent against the
other persons interested, it is not theft.
12. Where husband and wife are separated in person and estate, the
delivery by the husband of the wife's property, over which she has
given him no control, without her assent, to a person who is connu-
sant of the facts, and who takes it with a fraudulent intent, it is theft in
both.
13. But where the separation is of property only, no one can be con-
victed of theft of the wife's property, who shows a voluntary delivery
by the husband.
14. The last two preceding rules apply equally to property of the
husband, delivered under similar circumstances by the wife.
15. The dispositions of law, in the case of thefts or other offences
committed by the wife in company with the husband, are found in the
third chapter of the First Book.
16. Neither the ownership nor the legal possession of property is
changed by theft alone, without the circumstances required in such
case by the Civil Code, in order to produce a change of property; there-
fore, stolen goods, if fraudulently taken from the thief, are stolen from
the original proprietor.
17. The possession of articles of dress or ornament, which are per-
sonally used by minor children, who are not of sufficient discretion
CODE OF CRIMES AND PUNISHMENTS.
465
to know the value of property, is the possession of the parent or guar-
dian; therefore, such property fraudulently taken, although with the
consent of the child, is theft.
Art. 648. Although nothing but corporal personal property, as the
same is defined in this code, is the subject of this offence, yet if any
one shall sever from any BUILDING, fixed on the land of another, any
of the materials of which it is formed, or shall take any produce of the
soil, growing on such soil, of the value of five dollars or more, for the
purpose of fraudulently appropriating the same; and in pursuance of
such intent, shall remove them from the said land, such severance is
sufficient to bring the materials, or other produce taken, within the
description of personal property, and make the person taking the same,
guilty of theft.
Art. 649. Simple theft, if of property not exceeding in value thirty
dollars, is punishable by imprisonment, at hard labour, not exceeding
three years. If the property be above the value of thirty dollars, the
punishment shall not be less than two nor more than four years.
SECTION VI.
Of aggravated theft.
Art. 650. The crime of theft may be aggravated by several circum-
stances, which are described in the following sections. If theft be not
accompanied by any of them, it is simple theft.
SECTION VII.
Of theft by effraction.
Art. 651. If any one shall, in the DAY-TIME, with a fraudulent de-
sign, enter a house, or a SHIP or other VESSEL, without breaking or
other violence, and shall then and there commit a theft, he shall be
imprisoned not less than three nor more than six years, at hard labour.
This article does not relate to domestic servants, or other inhabitants
of the house in which the theft is committed.
Art. 652. The last article only relates to property being in the house
or ship, not in the personal possession of any one in it. Taking pro-
perty of this last description may be either simple theft, private stealing
from the person, or robbery.
Art. 653. If any one break into a house, or into any ship or other
vessel, in the day-time, with intent to commit a theft, whether the
theft be committed or not, he shall be imprisoned, at hard labour, not
less than four nor more than seven years.
Art. 654. If any one be in the house, or in the ship or other vessel,
either at the time the offence mentioned in the last two preceding ar-
ticles is committed, and resist the offender, or be restrained from resist-
ing by fear, the punishment shall be increased one-fourth.
Art. 655. The breaking intended by the last three preceding articles,
means—first, that the entry must be made with actual force-the slight-
31
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CODE OF CRIMES AND PUNISHMENTS.
est force brings the offender within their purview-the lifting of a latch
of a door that is shut-the raising a window-the entry at a window,
chimney, or other unusual place the introduction of the hand or any
instrument to draw out the property, through any aperture made for the
purpose, although the whole body does not enter, is a breaking.
Art. 656. If any theft shall be committed by breaking any closet,
box, or other place of the like nature, in which the property stolen was
contained, the punishment shall be not less than four nor more than
seven years, at hard labour.
The breaking meant by this article must be by actual force. Not
merely lifting the lid of a box, or opening a door, when either are un-
fastened, the use of false keys, or of the true one fraudulently obtained,
is a breaking.
SECTION VIII.
Of stealing from the person.
Art. 657. If the theft be committed by privately stealing property
from the person of another, the offender shall be imprisoned, at hard
labour, not less than two nor more than six years.
Art. 658. By "privately," is meant either without the knowledge
of the party whose property is taken, or so suddenly that he has no
time to make resistance before the property is carried away.
Art. 659. If the party perceive the theft, and attempt to resist it, and
the theft is completed by violence, it is robbery; if not completed, after
violence or threats, it is an attempt to rob.
Art. 660. If the article be TAKEN, under the definition heretofore
given of that word, the crime of private stealing is complete, although,
owing to the difficulty of extricating it from the person of the pos-
sessor or from his detection of the attempt, it be not actually carried
away.
Art. 661. The theft must be from the person; if the property stolen
be in his presence only, it does not amount to this offence.
SECTION IX.
Of robbery.
Art. 662. Robbery is theft, committed by fraudulently taking the
property of another from his person or in his presence, with his know-
ledge and against his will; whether it be taken by force, or delivered
or suffered to be taken through fear of some illegal injury to person,
property or reputation, that is threatened by the robber or his ac-
complice.
Art. 663. The audacity of an open infringement of the laws, and the
alarm and danger it creates, are the characteristics of this species of
theft. Wherever either of these occurs, in any degree in the com-
mission of theft, the additional guilt is incurred; therefore, the law gives
CODE OF CRIMES AND PUNISHMENTS.
467
no measure for the degree of violence necessary to constitute this crime.
Any force that accomplishes the object, is sufficient.
Art. 664. No device will be sufficient to give another character to
this crime. If the property be fraudulently taken by violence, or
thus received when it is surrendered through fear, it is immaterial
whether it be done by a direct command, or by a request to give ast
alms, or under any other pretence.
Art. 665. If, by any of the means which constitute robbery, one is
forced to give property for an inadequate price, it is robbery.
Art. 666. If property be stolen by simple theft, and before it is car-
ried away, the owner is forced, by any of the means which constitute
robbery, to give up his attempts to recover possession of the property,
it is robbery.
Art. 667. Any threat, in order to be an effectual cause for the fear
mentioned in the definition of this offence, must be to do some illegal
act, productive of injury, either to person, property or character.
threat of withdrawing favour, or doing any other lawful act, is not
sufficient.
Art. 668. The threat need not be direct; it is sufficient, if it be ex-
pressed indirectly, or by gestures only, so as to produce the effect.
Art. 669. The punishment for this offence is imprisonment, at hard
labour, not less than seven nor more than fifteen years.
SECTION X.
Of receiving property, knowing it to be fraudulently obtained.
Art.670. Whoever shall receive, either by way of purchase or on
any other contract, or for safe keeping or concealment; or shall con-
ceal, or endeavour to conceal any property, knowing it to be fraudu-
lently obtained by any of the acts which, by this chapter, are created
offences-shall be punished in the same manner with the principal
offender.
Art. 671. It is no objection to the conviction of a receiver, under this
section, that the principal offender has not been convicted; but if any
one be indicted, and in custody or on bail, for stealing, or otherwise
fraudulently obtaining the same property, the person accused as re-
ceiver shall not be tried, without his consent, until the prosecution
against the principal offender is disposed of.
Art. 672. The offence, described in this section, is a distinct and sub-
stantive offence, not governed by the rules which apply to accessaries.
Art. 673. If any one, knowing that property has been taken by
theft, aid the thief in removing it to its final destination or place of
concealment—such person is an accomplice in the theft, and not a re-
ceiver.
Art. 674. An accomplice in a theft, who is not present at the act, and
afterwards receives the property, is punishable as an accomplice.
Art. 675. Nothing in this chapter contained, applies to the taking of
property, which the person taking believes to be his own, or that of
another who has authorized him to take it.
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CHAPTER IV.
Of attempts to defraud by threats.
Art. 676. Whoever, with a FRAUDULENT intent, shall threaten ano-
ther with any injury to his person, reputation or property, accompa-
nied by a demand of property, or of service, as the means of avoiding
the execution of such threat, shall be imprisoned at hard labour, not
less than one nor more than five years, provided such offence do not
amount to robbery.
Art. 677. The injury intended by the last preceding article, means not
only a direct injury, by means of actual violence, but also that which
is indirect, such as a threat of bringing an accusation for some offence,
either juridically, or by public defamation.
Art. 678. The injury need not be threatened directly against the pro-
perty, person, or reputation of the person to whom the threat is ad-
dressed, if it be against the reputation or person of the wife or husband,
ascendant or descendant, of the person whom it is intended to defraud,
it is sufficient to constitute the offence.
Art. 679. A threat to vilify the memory of a deceased ancestor, is a
sufficient threat to constitute this crime.
Art. 680. This offence is committed, whether the threat be verbal
or written; and if written, whether with or without a signature.
Art. 681. It is not necessary that the demand of property, or the
threat, should be in direct terms, if such be the plain meaning, it is
sufficient.
Art. 682. If any one shall make any such threats by writing, print-
ing, sending or delivering a letter or writing, whether in his own
name, in a fictitious name, or anonymously, or shall procure such
letter to be written, printed, sent or delivered, without any intent to
DEFRAUD, and without any demand of property, as the means of avoid-
ing the execution of the threat, but merely from MALICE, he shall be
imprisoned not less than one nor more than six months, and fined not
less than fifty nor more than three hundred dollars, and the whole or
part of the imprisonment shall be in close custody.
CHAPTER V.
Of conspiracy.
Art. 683. Conspiracy is an agreement between two or more persons
to do any unlawful act, or any of those designated acts which become,
by the combination, injurious to others.
The several conspiracies that are punishable by law, are :
1. A conspiracy to commit an offence.
2. Falsely to accuse and prosecute another of committing an offence.
CODE OF CRIMES AND PUNISHMENTS.
469
3. To do certain injuries that are neither crimes nor offences if done
by an individual.
Art. 684. The agreement constitutes the offence, and it is a distinct
offence from any other that may be committed in carrying it into ef
fect; and to complete the offence, it is not necessary that any act
should be proved to have been done in furtherance of the agreement.
Art. 685. But if the accused show that the design was abandoned,
before any act was done towards its execution, voluntarily, and not
from any obstacle, the punishment shall be lessened one-half.
Art. 686. Where the conspiracy is to commit an offence, the punish-
ment shall be one-half of that denounced by law against the offence
which it was the object of the agreement to commit, if it be not car-
ried into effect, and in addition to such punishment, if it is committed.
Art. 687. Where the conspiracy is falsely to accuse and prosecute
another of an offence, the punishment shall be one-half of that which
would have been inflicted if the offence had been proved.
Art. 688. It is not necessary, for supporting an indictment for a con-
spiracy, to accuse and prosecute; to show that the party has been ac-
quitted on such prosecution; but if the prosecution, which is alleged
to be false, be pending, the defendants in the indictment for conspi-
racy are entitled to have it tried before they are themselves put upon
trial.
Art. 689. The cases not comprehended in the foregoing articles of
this chapter, and in which conspiracies become unlawful, are as fol-
lows, to wit:
1. Every one has a right, individually, to determine what he will
give as a consideration for services or property to be furnished to him:
he has the same right to withhold his own service or property, unless
the value he shall place upon them be paid. But an agreement, sti-
pulating that the parties to it will not give more than a certain price
for any particular species of service or property, or that they will not
furnish or render any such property or service for less than a stipu-
lated price, is injurious to that free competition necessary to commerce.
And if such agreement be made between two or more persons not be-
ing partners, it is a conspiracy, and shall be punished by simple im-
prisonment, for not more than three months, or by fine not exceeding
three hundred dollars, or both.
2. If the agreement be made between employers, not to give above
certain wages to workmen, imprisonment shall always form part of
the sentence, and the imprisonment cannot be for less than ten days.
3. If the agreement constituting the conspiracy, in any case what-
ever, purport to inflict any injury on the person, property or reputa-
tion, of those who will not enter into such agreement, the punishment
shall be doubled.
4. Any malicious combination or agreement to injure any individual,
or description of persons, in their reputation, or profession, or trade, or
property, by agreeing not to employ them, or by other means that
would not otherwise amount to an offence, is a conspiracy, and shall
be punished by fine, not exceeding two hundred dollars, or imprison-
ment, not exceeding sixty days, or both.
5. Any combination or agreement to raise the price of any articles
of food, fuel or drink, is a conspiracy, and is punishable by fine, not
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CODE OF CRIMES AND PUNISHMENTS.
exceeding five hundred dollars, and imprisonment, not exceeding
three months.
6. An agreement of partners, solely between themselves, is not such
an agreement as can constitute this offence, unless the partnership bet
specially entered into for the purpose of making such conspiracy ;
in which case, or whenever the benefit (if any) to be derived from the
conspiracy is agreed to be participated, the punishment shall be dou-
bled.
7. An agreement to abridge or increase the quantity or time of la-
bour, comes within the description of limiting the price to be given,
or determining that which must be received.
GENERAL PROVISION.
Of accessaries.
Art. 690. All accessaries shall be punished by one-fourth of the pun-
ishment that would have been suffered by the principal offender; pro-
vided, that it shall, in no case, exceed a fine of three hundred dollars,
and imprisonment, in close custody, for one year
A CODE OF PROCEDURE.
INTRODUCTORY TITLE.
CHAPTER I.
Preamble.
Art. 1. It is not enough to have defined offences and designated the
punishments adapted to them: every citizen must not only be taught
what actions he is to avoid as offences, but must also be informed by
what means he may prevent an injury he apprehends, or bring the of
fender to justice if the wrong be already suffered.
Judges, other magistrates, and ministers of justice, must have their
duties defined not only for their own guidance, but that, being gene-
rally understood, they may receive the high reward of public approba-
tion, or suffer disgrace or punishment; as those duties are performed,
neglected, or wilfully abandoned.
These considerations have induced the general assembly of Loui-
siana to enact this Code of Procedure, forming a part of their System
of Penal Law. It is divided into three books:
The first contains the means of preventing offences, and of putting
an end to such as continue; it designates the cases in which the milita-
ry force may be employed in aid of the civil power, and prescribes the
rules by which it shall be governed in that service.
The second directs the mode of procceding for bringing an offender
to punishment, from the complaint to the final judgment.
The third gives the forms to be used in all the judicial proceedings
prescribed or authorized by this code.
CHAPTER II.
General provisions.
Art. 2. This code being a part of the general system of Penal Law,
all the words used herein, are employed in the same sense that is given
to them when they are used in any other part of the system.
Art. 3. All the general provisions in the second chapter of the first
book of the Code of Crimes and Punishments, and all such general
provisions in other parts thereof as apply to the subject of this code,
3 K
474
CODE OF PROCEDURE.
have the same force in this that they have in the Code of Crimes and
Punishments.
Art. 4. The objects which the general assembly has endeavoured to
effect by this code, are:
1. The prevention of intended offences.-This is attained by point-
ing out on what occasions, and by what means an individual may call
for the interference of the magistrate, or of his fellow citizens, or may
use his own physical powers to resist any attempted invasion of his
rights or those of others.
2. The protection of innocence against unjust accusations.-No
laws can in all cases protect against perjury, error, or the combination
of circumstances which sometimes gives to innocence the appearance of
guilt; but they can, and ought to provide every facility that human
prudence can suggest, and human power can effect, for making truth
evident, and detecting error; they should also, by avoiding all entan-
gling forms, insure an acquittal to every one who is accused unless his
guilt be made apparent.
3. To take away from the guilty all hope of escape by a resort to
formal or technical objections.-The great object of penal law is the
prevention of offences by the example of punishment, the intent of all
codes of procedure is to insure this end; therefore, every system must
be imperfect which permits the form to defeat the substance of the
law, and suffers a criminal ever to escape punishment, from any defect
of form in his prosecution.
4. To give to criminal proceedings the greatest degree of de-
spatch that is consistent with the prosecution of public justice on
the one side, and the defence of private rights on the other.-Delay
inflicts punishment on the innocent, or lessens the force of example,
by punishing the guilty after the crime he has committed is forgotten.
5. To subject the innocent to no expense, and to impose none on
the guilty but such as may be measured and apportioned to the of
fence. To add to the evil of an unjust accusation the obligation of
paying for it, would be an absurdity and an injustice that no law should
sanction ; and the indiscriminate infliction of costs on every conviction
without regard to the circumstances of the offender or the nature of
his offence, is scarcely less unjust.
6. To abolish all forms, that produce vexation to the prosecutor,
to the accused or to the witnesses; and to subject no one who is con-
cerned in a criminal proceeding to any inconvenience, but such as
are absolutely necessary for the execution of the law. The obliga-
tions and restraints imposed by the most perfect laws, are necessarily
attended with inconvenience to those who are called on to execute them,
or have become subject to their animadversion; to reduce them to the
lowest degree consistent with public safety, is one object of the present
code.
7. To render the whole form of proceeding simple and perfectly
intelligible to all. -The utility of this object is so apparent as to ren-
der no illustration necessary.
Art. 5. These objects: security to the innocent, not only from the
danger of an unjust conviction, but the apprehension of it; the pre-
vention of intended offences; the destruction of all hope of escape from
merited punishment by a resort to formal objections; despatch; econo-
my; the abolition of all vexatious proceedings, and the establishment
code of procedure.
475
of simplicity in forms, have been the principal objects in the formation
of this code, and they are conspicuously placed here that future legis-
latures may weigh their importance, examine how far the different pro-
visions of this code are in conformity with them, and in what points.
they are not adhered to, in order that the proper amendments may be
made to give them effect.
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CODE OF Procedure.
BOOK I.
OF THE MEANS OF PREVENTING OFFENCES; OF SUPPRESSING THOSE
WHICH ARE CONTINUOUS, AND OF EMPLOYING THE MILITARY IN AID
OF THE CIVIL POWER.
TITLE I.
OF PREVENTING OFFENCES.
Art. 6. Offences may be prevented,
1. By lawful resistance.
2. By the intervention of the officers of justice.
Art. 7. Resistance to the offender in the commission of the offence
may be made in the cases and in the manner prescribed by law, either
by the person about to be injured or by others, without the interven-
tion of the officers of justice.
CHAPTER I.
Of resistance by the party offended.
Art. 8. Resistance, proportioned to the degree of aggression, may
be used to prevent any of those acts described in the Code of Crimes
and Punishments, as "Offences against the person."
Art. 9. The same degree of resistance may be opposed to prevent
any illegal attempt by force to take or injure property in the lawful pos-
session of the person holding it.
Art. 10. By the resistance proportioned to the aggression in the
above articles is meant, such as is sufficient for the purpose of prevent-
ing the offence, and no more.
Art. 11. The Code of Crimes and Punishments in the titles relative
to offences affecting person and property, contains rules by which the
exercise of this right is elucidated and modified.
CODE OF PROCEDURE.
477
CHAPTER II.
Of the rights and duties of third persons in preventing the com-
mission or continuance of offences.
Art. 12. It is the duty of every citizen not only to abstain from
offences himself, but to prevent their being committed by another, if he
can do so without injury to himself: if he voluntarily incur the risk
of such injury it is a merit which entitles him to public esteem and in
certain cases provided by law, to an honorary reward. The cases in
which this duty of interfering to prevent offences is permitted, and those
in which it is enforced under a penal sanction, are detailed in the
following articles of this chapter.
Art. 13. In all cases where an offence is seriously threatened or in-
tended, it is a moral duty in him to whose knowledge such intent may
come, to prevent its execution by notice given either to the party who
may be affected, or to a magistrate. It is an offence to have omitted
such notice, in all cases where the crime is subsequently committed, and
is one of those punishable by imprisonment for life, provided, the in-
tention has been made manifest by express words, or by doing some
act preparatory to the commission of the crime: whoever shall be guilty
of this offence shall be fined not exceeding one hundred dollars or im-
prisoned not exceeding sixty days.
Art. 14. In cases in which the intention has been shown by an act
which itself is an offence, (such as a conspiracy) and the intent is to
commit a crime punishable by imprisonment for life: the person hav-
ing a knowledge of such conspiracy or other preparatory act, who
shall not give notice of it to a magistrate or to the party about to be in-
jured, shall incur the punishment denounced by the last preceding
article, whether the intended crime be committed or not.
Art. 15. After an offence has been committed, the mere omission to
denounce it is not punishable, if not accompanied by such an act as
renders the person an accessary.
Art. 16. Every species of such illegal violence to the person or pro-
perty as is by the Code of Crimes and Punishments constituted an of-
fence, may be suppressed after it has begun to be exercised, by the re-
sistance not only of the party injured, but by that of others who may
come to his aid, but they are bound in exercising this right to propor-
tion the means and degree of resistance to the violence offered, accord-
ing to the rules that are prescribed to the party injured in the last pre-
ceding chapter, and the parts of the code to which it refers.
Art. 17. All those who are legally called on by any magistrate or
officer of justice in the execution of his duties, are not only justified in
giving their aid in suppressing acts of illegal violence, and arresting
offenders, but are bound to do so, under the penalty of a fine not ex-
ceeding fifty dollars.
Art. 18. If any one shall voluntarily incur any great danger, or
use extraordinary diligence, or show unusual skill in preventing or sup-
pressing an offence, or in arresting an offender, he shall be entitled to
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CODE OF PROCEDURE.
an honorary certificate made by the court, having the highest penal juris-
diction in the district of his residence, which certificate shall be enter-
ed on the minutes of the court, and published three times in three
successive years, and authenticated copies shall be sent to the governor
of the state, and to the president of the senate, to serve as recommen-
dations for an appointment to any office in which the qualities he has
shown may be useful.
Art. 19. In cases of extraordinary exertion, coming within the intent
of the last preceding article, which in the opinion of the judge, and of
the governor of the state, shall merit such distinction, a piece of plate
of the value of one hundred dollars, with a suitable inscription, to be
executed under the direction of the governor, shall be added to the
honorary certificate.
Art. 20. Whoever shall give such information to a magistrate as
shall lead to the conviction of any one guilty of fighting a duel, or giv-
ing or accepting a challenge, or forgery, or any crime punishable by
imprisonment for life, shall be entitled to receive, on the certificate of
the judge and public prosecutor in the court where the conviction was
had, the sum of fifty dollars, from the treasurer of the state, out of the
moneys received for fines.
Art. 21. Neither the party immediately injured by any of the crimes
referred to in the last article, nor an accomplice in the crime, are enti-
tled to the recompense therein mentioned.
Art. 22. The crime of rape being one of those that can only be pro-
secuted on the complaint of the party injured, is not included in those
for the discovery of which the recompense is offered.
Art. 23. When laws are just, whoever contributes to their execution,
renders an acceptable and an honourable service to his country, and he
ought no more to be reproached for receiving a recompense for the
trouble of denouncing an offender, than for taking a salary for any other
public service; therefore, to repress the effects of a vulgar and injurious
prejudice, it is declared to be an offence for any one in writing or in
any other way by which defamation may be committed, to use reproach-
ful or insulting words against any person, or endeavour to bring him
into contempt, or excite the public indignation against him for having
given information against any offender, or for having received the re-
compense granted by law; and the offender shall be punished by fine
not less than twenty nor more than one hundred dollars.
CHAPTER III.
Of the prevention of offences by the intervention of officers of justice.
Art. 24. When any one fears, with JUST REASON, that another intends
to commit an offence against his person or property, with violence, he
may apply to a magistrate, who shall without delay take the declaration
of the applicant, under oath, reduced to writing; and if it appears that
he has any reason to fear the commission of such an offence as is above
described from any DESIGNATED PERSON, he may cause such person to
CODE OF PROCEDURE.
479
be arrested and brought before him by warrant, which must substantial-
ly state the application.
Art. 25. When any one so arrested is brought before the magistrate,
he shall hear any statement or proof the accused has to offer, and if
from such statement and evidence it appear that the complainant has
mistaken the intention of the accused, and has no cause of fear, the
prisoner shall be discharged; if he fail in showing that the application
is groundless, the magistrate shall direct him to give bond with sufficient.
security that he will commit no offence against the person or property
of the complainant.
Art. 26. The penalty of such bond shall be determined by the rules
laid down in this code, for the government of magistrates in taking bail.
Art. 27. If the bond be not executed according to the order of the
magistrate, the prisoner shall be committed to prison, and shall remain
in custody until the bond shall be executed according to the order.
Art. 28. If from the nature of the evidence offered, or from the
demeanour of the prisoner, the magistrate has just reason to believe that
the prisoner intends an offence against the person or property of any
persons who cannot be particularly designated, he may order the bond
to be conditioned that he will commit no offence against the person or
property of any one.
Art. 29. The bond shall be limited in its operation to the term of
twelve months; but it may be for a shorter time; and at any time
within the last month, the complainant may renew his application, and
the order for security may be renewed on the oath of the party, de-
claring that he still fears the execution of the prisoner's former designs,
provided the magistrate, after hearing the circumstances of the case,
shall deem such fear well founded.
Art. 30. Any magistrate who is present when any offence, accom-
panied with violence, is committed, may, without any other proof, order
the offender to be arrested, and compel him to give security in the
manner above directed, to refrain from the exercise of any illegal force.
Art. 31. Any person who knows or has reason to suspect that an
offence, such as is distinguished in this code as one of those against
person or property is intended to be committed, may apply to a magis-
trate, who shall hear the proof, and if he be convinced of the existence
of such intention, shall cause the person accused to be arrested, and
compelled to give security in the manner before directed.
Art. 32. Courts may on any conviction add to their sentence that
after the execution of the punishment is complete, and before the de-
fendant, if in custody, be discharged, he shall give security in the form
and for the time above directed, either that he will not commit any
particular offence or any designated species of offences, or generally,
that he will commit no offence for the time limited. But this power
is only to be exercised where, from the character of the party or his
conduct in committing the offence, there is good reason to apprehend
a repetition of that offence, or the commission of some other.
Art. 33. If the condition of the bond be forfeited, it shall be put in
suit by the public prosecutor, who must specify in his petition in such
suit the offence which caused the breach of the condition of the bond,
with the same certainty that is required in an indictment, and must
prove the same by the same evidence that would be required on a
trial for the same offence.
480
code of procedure,
Art. 34. At any time before the breach of the condition of such
bond, the surety may discharge himself by surrendering the principal,
in the manner herein directed in the case of bail for appearance.
Art. 35. Individuals have also a right to prevent the consequences
of a theft by seizing any personal property which has been stolen, or
which there is good reason to believe has been stolen, and bringing it
with the supposed offender, if he can be taken, before a magistrate for
examination, or delivering it to an officer of justice for that purpose;
but this must be done openly, and the whole without delay.
Art. 36. When the nature of the case and the proof offered to the
magistrate, of any intended injury to person or property, justifies and
requires it in his opinion, he may order a sufficient number of officers
of justice to guard the person or property threatened, or may, accord-
ing to the directions hereinafter contained, require military aid for
that purpose.
Art. 37. If any one be brought before a magistrate by virtue of an
application under the first article of this chapter, where the complain-
ant has made oath that he fears violence, but it does not appear to the
magistrate that from the circumstances such fears are well grounded,
he shall, nevertheless, before discharging the prisoner, admonish him
of the nature and consequences of the offence which the applicant fears
he will commit, and if after such admonition the prisoner shall com-
mit such offence, he shall suffer the maximum of the punishment as-
signed to the same.
Art. 38. The constitution of the state gives to every citizen the
right freely to speak, write and print on any subject, being responsi-
ble for the abuse of that liberty;" therefore, no law can be made to pre-
vent any intended defamation in either of those modes; but if any one
shall make oath that he is informed and believes, and shall convince
the magistrate that he has good reason to believe that another is about
to PUBLISH, SELL or CIRCULATE, or is continuing to sell, publish or cir-
culate any libel against him, or any such publication as is forbidden by
the Code of Crimes and Punishments, in the chapter of offences against
morals and decency, the magistrate shall cause the person accused to be
summoned to appear before him, and shall admonish him of the nature
and consequences of the offence which the applicant fears he will com-
mit; and if after such admonition the accused shall commit such offence,
he shall suffer the maximum of the punishment assigned to the same.
Art. 39. On a conviction for a libel, or for any publication forbidden
by the chapter of the Code of Crimes and Punishments concerning of-
fences against morals and decency, the court shall order all the copies
of the publication on which the conviction was had; and which remain
in the hands of the defendant, to be seized and destroyed; and if it
shall appear that after the commencement of the prosecution was noti-
fied to the defendant, he shall have sold or circulated any copies of
such publication, he shall suffer the maximum of the punishment as-
signed to the offence.
Art. 40. The court shall, in like manner, on a prosecution for selling
unwholesome provisions or liquors, or adulterated medicines, order
them to be seized, and after conviction they shall be destroyed; and
any sale made by the accused during the pendency of the prosecution,
shall produce the same effects as to the punishment that is directed in
the last preceding article with respect to libels.
CODE OF PROCEDURE.
481
Art. 41. Another case in which the court must interfere to prevent
offences is, by ordering the removal of all such obstructions in public
and common property, and all such establishments injurious to public
health, as shall be found by a conviction of the offender to have been
made.
CHAPTER IV.
Of search warrants, as the means of preventing the commission of
crimes and the loss of property by theft.
Art. 42. A search warrant is an order in writing made by a magis-
trate, directed to an officer of justice, commanding him to search for
certain specified articles, supposed to be in the possession of one who
is charged with having obtained them illegally, or who keeps them
with the intent of using them as the means of committing a certain de-
signated crime.
Art. 43. The power of granting this writ is one in the exercise of
which much is necessarily left to the discretion of the magistrate; he
is, however, bound by the following rules in granting the warrant, and
the ministerial officer by those which are afterwards laid down for his
conduct in executing it.
Rules for the magistrate in granting a search warrant.
1. Search warrants can only be granted for the following purposes,
that is to say:
To discover property taken by theft or under false pretences, or
found and fraudulently appropriated.
To seize forged instruments in writing or counterfeited coin intended
to be passed, or the instruments or materials prepared for making them.
To seize arms or munitions prepared for the purpose of insurrection
or riot.
To discover articles necessary to be produced on the trial of one ac-
cused of a crime under the circumstances hereinafter stated.
2. A search warrant can be granted in no case but on an AFFIDAVIT,
made by a credible person.
3. If the application be to search for property taken by theft or un-
der false pretences, the affidavit must state that the property has been
lost by one of these offences; it must describe the property, and state
a belief and the reason of such belief, that the property is concealed in
a certain place, describing it.
4. If forged papers, false coin, or the instruments or materials for
making them, form the object of the application, the affidavit must
state a belief and the reason on which it is founded, that those articles
or some of them are concealed in a certain place, describing it, with
intent to commit a crime.
5. If the application be to search for arms or munitions prepared for
insurrection or riot, the affidavit must state a belief and reasonable
3 L
482
CODE OF PROCEDURE.
grounds for such belief, that a conspiracy has been formed, or an un-
lawful assembly held, for the purpose of preparing the means for exe-
cuting those offences, and that the arms or munitions were part of such
preparation; and must also describe the place in which it is suspected
they are deposited.
6. When any one accused of a crime before a magistrate, to whom
it shall appear from the circumstances in evidence before him, that the
production of some weapon, implement or other article, will be neces-
sary on the trial of the accusation, if it shall appear by the oath of at
least one witness, that there is good reason to believe that such article
is concealed in a certain place, this warrant may also issue.
7. The designation of a house by the name of the owner or the oc-
cupant, or by the number or situation, is a sufficient description of place
under the preceding articles.
8. If the magistrate be satisfied of the truth of the allegations in the
affidavit, he shall make his warrant in the form prescribed for that pur-
pose in this code, but no variation from that form shall affect the valid-
ity of the warrant, provided it be not deficient in one of the following
requisites:
First. It must be in WRITING, and signed by the magistrate with
his name; and the designation of the office he holds, must appear ei-
ther by the signature or in the form of the warrant.
Second. It must be directed to the sheriff or to some other officer of
justice if to the sheriff, it may be by the designation of his office; if
to any other officer of justice, his name as well as his office must be
put in the direction.
Third. It must direct him to search for and bring before the magis-
trate to be disposed of according to law, the property or articles spe-
cified in the affidavit, describing it as set forth in the affidavit.
Fourth. The place to be searched must be specified with reasona-
able certainty.
Fifth. The officer must be directed to execute the warrant in the
day time.
Sixth. The officer must be directed to bring the property described,
and the person in whose possession it may be found, before the magis-
trate for examination, without delay.
9. When the property is brought before the magistrate, if upon the
examination and evidence offered him it shall be identified to be the
same with that described in the affidavit, and that it was taken or held
for the purpose mentioned therein, he shall cause an inventory to be
publicly taken thereof, in the presence of the party in whose possession
it was found and of the applicant for the warrant, if they choose to at-
tend; one copy of which shall be given to each of them, one kept by
the sheriff, and another filed by the magistrate, with his proceedings,
for the purpose of being sent with the articles seized to the court that
shall try the offence.
10. If the magistrate discovers either that the property seized is not
the same with that described in the affidavit and warrant, or that there
is no good reason for the suspicions set forth in the affidavit, he shall
direct the property to be restored, and the possessor, if brought before
him, discharged.
11. If the person in whose possession the property was found, shall
be brought before the magistrate in obedience to the writ, he shall pro-
CODE OF PROCEDURE.
483
ceed to his examination in the manner directed for examinations on
arrests, and shall either discharge, commit or let him to bail, as is di-
rected in that part of this code.
Rules for the government of officers of justice in the execution of
search warrants.
1. If the warrant be directed to a sheriff, it may be executed by him
or any of his known deputies previously appointed, but if he make a
special deputy for the purpose of the deputation, the name of the per-
son shall be written on the warrant.
2. If the warrant be directed by the magistrate to any other officer
of justice, he must see that his name as well as his office is written in
the warrant, and in all cases the officer must see that the warrant con-
tain all the requisites above stated, to give it validity; if it do not, he
is not bound to execute it.
3. Before executing the warrant, the officer must give notice of its
execution to the person who applied for it, that he may be present and
identify the property if it be found.
4. The warrant must be executed in the presence of two inhabitants
of the parish, who shall sign the return as witnesses.
5. It can only be executed in the DAY TIME.
6. No other place than that designated in the warrant can be search-
ed, but the whole of that may be examined.
7. The officer charged with the warrant, if a HOUSE is designated as
the place to be searched, may enter it without demanding permission
if he find it open; if the doors be shut, he must declare his office and
his business, and demand entrance; if the doors be not opened, he may
break them. When entered, he may demand that any other part of
the house, or any closet, or other closed place in which he has reason
to believe the property is concealed, may be opened for his inspection,
and he may break them if it is refused.
8. If required, the officer must show his warrant.
9. He makes himself liable to damages and to the penalties pre-
scribed by the Code of Crimes and Punishments in cases of misbeha-
viour in office, by any unnecessary force, harshness or ill usage in the
discharge of this duty.
10. An inventory of the property seized must be made before it is
removed, and signed by the officer and the two witnesses.
11. No other property but that specified in the warrant must be
seized.
12. If the property specified in the warrant be seized, the person in
whose possession it was found must be arrested, according to the forms
in this code for making arrests, and with the property brought for ex-
amination before the magistrate who issued the warrant.
13. A return shall be indorsed or annexed to the warrant, stating
what was done in obedience to it, and signed by the officer and the
two witnesses.
Art. 44. Whoever shall maliciously and without reasonable cause,
procure any search warrant to be issued and executed, shall be fined
not less than fifty nor more than three hundred dollars, or imprisoned
not less than thirty days nor more than six months, and the imprison-
ment, or any part of it, may be in close custody.
484
CODE OF PROCEDURE.
Art. 45. If any magistrate shall issue a search warrant without a
previous affidavit, as required by this chapter, he shall suffer the pun-
ishment mentioned in the last preceding article, and be deprived of his
office.
Art. 46. Any officer of justice, who in executing a search warrant,
shall exceed his authority to the injury of any one, shall be imprisoned
not exceeding sixty days, besides suffering the punishment assigned to
any other offence he may have committed by such illegal conduct.
TITLE II.
OF SUPPRESSING PERMANENT OFFENCES.
Art. 47. Permanent offences are such as are renewed by a continued
succession of the same acts which first created them. They may affect
the public tranquillity, the public health, the public property, or the
person, the reputation, or the property of individuals.
CHAPTER I.
Of suppressing permanent offences against the public tranquillity.
Art. 48. The mode in which magistrates and officers of justice are
to proceed in the suppression of offences of this nature, is declared in
the title that treats of those offences in the Code of Crimes and Pun-
ishments, and will be further provided for in the next title of this book.
CHAPTER II.
Of suppressing permanent offences against public health and safety.
Art. 49. Whenever an indictment shall be found against any one
for carrying on a business injurious to the health of those in the vicin-
ity, if the indictment shall charge that any persons have actually suf-
fered in their health from the exercise of such business, the court on
the application of those interested and after hearing the person accused
and receiving statements on oath on both sides, may in their discretion
enjoin the person accused, in such penalty as they may deem reasona-
ble, not to carry on the said business, or to carry it on in a place or in
a manner that will not prove injurious to the health of others until the
trial; and if a conviction shall be had on such indictment, the injunc-
CODE OF PROCEDURE.
485
tion shall be perpetual in conformity with the provisions of the third
chapter of the first title of this book.
Art. 50. In like manner if an indictment be found against any one
for carrying on a manufacture of powder or other dangerous operation,
contrary to the provisions of the Code of Crimes and Punishments,
a like injunction, and an order for the removal of the dangerous sub-
stance to a safe distance may be made by the court in which the indict-
ment is found.
CHAPTER III.
Of suppressing permanent offences against the public enjoyment of
property held for common use of all the citizens.
Art. 51. If any one shall erect any building or make any other per-
manent obstruction which shall prevent the free use of any public pro-
perty held for the common use of all the citizens, and which shall have
been in such common use for twelve months next preceding the time
of erecting such obstruction, the judge of the court of the highest crim-
inal jurisdiction in the district may on complaint and proof of the facts
above stated, cite the party accused of making such obstruction, to ap-
pear before him, and in a summary way shall take evidence of the
facts, and if the inconvenience to the public from the obstruction be so
great, as in his opinion to render it improper to wait the event of a
trial for the offence, and the fact of one year's previous possession and
use in the public is clearly proved, he may order such obstruction to
be removed by the sheriff.
Art. 52. No further penalty can be imposed until a conviction take
place, on an indictment or information for the offence.
Art. 53. If no indictment or information be filed against the party
whose building has been removed, or if on the trial he shall be acquit-
ted by showing title to the property on which it was erected, he is
entitled to an indemnity from the person making the complaint, for
any damage he may have suffered by the removal.
CHAPTER IV.
Of the suppression of permanent offences against morals and de-
cency.
article of
Art. 54. In cases of publications which come within this description
of offences, the suppressive remedy is set forth in the
the third chapter and first title of this book; if the offence be commit-
ted by indecent exposure, it is suppressed on complaint and arrest, in
the manner directed for other offences, and by taking security for good
behaviour.
486
CODE OF PROCEDURE.
CHAPTER V.
Of suppressing permanent offences to reputation.
Art. 55. The only cases and the only manner in which the sup-
pression of the offences mentioned in the title of this chapter can be
made, are those detailed in the
articles of the third chapter
and first title of this book.
CHAPTER VI.
Of the suppression of permanent offences affecting the person by
assault and battery.
Art. 56. The continuance of assault and battery may be suppressed
in the manner heretofore indicated in this and in the Code of Crimes
and Punishments, by resistance of the party aggrieved, or of those who
come to his aid, and by the arrest of the offender, and forcing him to
give security to keep the peace.
CHAPTER VII.
Of suppressing offences against personal liberty.
Art. 57. The suppressive remedy for offences of the nature indicated
in the title of this chapter, is by writ of habeas corpus; the nature of
which remedy, and the mode of applying it, are detailed in the follow-
ing sections of this chapter.
SECTION I.
Definition and form of this writ.
Art. 58. A writ of habeas corpus is an order in writing, issued in
the name of the state, by a judge or court of competent jurisdiction,
directed to any one having a person in his custody, or under his re-
straint, commanding him to produce such a person at a certain time
and place, and to state the reason why he is held in custody, or under
restraint.
Art. 59. The writ of habeas corpus is to be, as nearly as circum-
stances will permit, in the following form, to wit:
CODE OF PROCEDURE.
487
at
The state of Louisiana to A. B. You are commanded to have C. D.
in your custody, as is said, detained, or under your restraint, kept, be-
fore E. F. judge of, (describing the office of the magistrate issuing the
writ, or if issued by a court, inserting the style of such court) on the
day of
o'clock, in the forenoon or afternoon
(as the case may be) of the same day, at (naming the place) or forth-
with (as the case may be), and that you then and there state in wri-
ting, the cause of detaining the said person, and produce your authority
for so doing, and hereof you are not to fail under the heavy penalties
denounced by law against those who disobey this writ. E. F. judge,
&c. or G. H. clerk of the court of, &c.
Art. 60. The writ of habeas corpus (if issued by a judge) must be
signed by him, or (if issued by a court) must be signed by the clerk,
and sealed with the seal of such court.
Art. 61. The proceedings under this writ are considered as the
most effectual safeguard of personal liberty against public or private
attempts to invade it. It is therefore declared, that in all cases where
there may be any doubt on the construction of any provision in this chap-
ter, that construction must be given which is most favourable to the
person applying for relief under it, and which will give the most ex-
tensive operation in all cases, to the remedies hereby provided against
illegal restraint.
Art. 62. The writ of habeas corpus is not to be disobeyed for any
defect of form. It is sufficient; 1st, If the person to whom it is di-
rected, be designated, either by the style of his office (if he have any),
or by such other appellation or description as may make it understood
by one of common understanding, that he is the person intended, and
any one who may be served with this writ, who has, in fact, the cus-
tody of the person directed to be produced, or who exercises a re-
straint over him, cannot avoid obedience thereto, although the writ
may be directed to him by a wrong name, a false description, or even
although it be directed to another. 2d, It is sufficient if the person
who is directed to be produced, be designated by name, or if the name
be unknown or uncertain, if he be described in any other way so as to
make it be understood by one of common understanding, who is the
person intended. 3d, The name and office of the judge, or the STYLE
of the court issuing the writ, must be either stated in the body of the
writ, or by the signature thereof, so as to show sufficiently the author-
ity for issuing the same. If the time of making the return should be
omitted, the writ is to be obeyed without delay; if no place be in-
serted, it must be obeyed, by making the return at the dwelling of
the judge or the usual place of holding the sessions of the court, which-
ever issued the same.
Art. 63. The insertion of words in the writ, other than those con-
tained in the above given form, or the omission of any which are
inserted in such form, shall not vitiate the writ, provided the substan-
tial parts enumerated in the preceding article are preserved.
488
code of procedure.
SECTION II.
Who has authority to issue writs of habeas corpus, and in what case and how they are
to be applied for.
Art. 64. The district courts and the criminal court, as now estab-
lished, and all other courts which may hereafter be established, having
jurisdiction in civil causes, to the amount of more than three hundred
dollars, or of criminal cases where the punishment is more than one
year's imprisonment at hard labour; and the judges of such courts
have power to issue writs of habeas corpus, directed to any person
within their respective districts.
Art. 65. When the judge of any district is absent, interested or inca-
pable, from whatever cause, of acting, and there is no judge of a crim-
inal court in such district, a writ of habeas corpus may be issued by a
judge of competent authority, in any of the adjoining districts; provi-
ded, the absence, interest or inability of the judge of the district, where
the illegal imprisonment is said to exist, be made to appear by the
oath of the party applying, or other sufficient evidence.
Art. 66. The writ of habeas corpus may be obtained by petition
addressed to any court or judge, having authority to grant the same,
signed either by the party, for whose relief it is intended, or any other
person on his behalf. The petition must state in substance:
1. That the party is illegally imprisoned or restrained in his liberty,
and by whom, naming both parties, if their names are known, or de-
signating or describing them, if they are not.
2. If the confinement or restraint is by virtue, or under colour of
any judicial writ, order or process, a copy thereof must be annexed,
or it must be averred that such copy has been demanded and refused.
3. If the confinement or restraint be by virtue of judicial process,
regular in form, but illegally obtained or executed, it must be set
forth in what the illegality consists.
4. If the confinement or restraint is not by virtue of any judicial
process, then the petitioner need only state that the party is illegally
confined or restrained.
5. The petition must contain a prayer for the writ of habeas corpus.
6. It must be sworn to be true, at least according to the belief of the
person making the application.
Art. 67. Any court or judge empowered to grant writs of habeas
corpus on receiving such petition, shall, without delay, grant the
same; unless it appear from the petition itself, or from documents an-
nexed, that the party can neither be discharged, nor admitted to bail,
nor in any other manner relieved.
Art. 68. A writ of habeas corpus is granted in court by the signa-
ture of the clerk, and affixing the seal of the court to the writ. It is
granted by the judge, by his signature only.
Art. 69. Whenever the court or judge, duly authorized, shall know,
or have reason to believe, that any one, in the district of such judge or
court, is illegally confined or restrained in his liberty, they shall issue
a writ of habeas corpus for his relief, although no petition be presented,
or application made for such writ.
CODE OF PROCEDURE.
489
Art. 70. Whenever it shall appear by the oath of a credible wit-
ness, or other satisfactory evidence, that any one is held in illegal con-
finement or custody, and there is good reason to believe that he
will be carried out of the state, or suffer some irreparable injury, before
he can be relieved in the usual course of law; or whenever a writ of
habeas corpus has been issued and disobeyed, any court or judge, em-
powered to issue writs of habeas corpus, shall make a warrant, directed
to any sheriff or other executive officer of justice, or any other person
who may agree to execute the same, commanding him to take and
bring the prisoner, so illegally confined, before such judge, to be dealt
with according to law.
1
Art. 71. Where the proof mentioned in the preceding article, is
sufficient to justify an arrest of the person, having the prisoner in cus-
tody for any offence against the provisions of the Code of Crimes and
Punishments, in favour of personal liberty, the judge may add to the
warrant an order of arrest of such person for such offence, who shall
be brought before the judge, and shall be examined and committed,
bailed or discharged, according to the directions contained in the first
title of the second book of this code.
Art. 72. Any officer, or other person to whom the warrant men-
tioned in the two last preceding articles shall be delivered; shall exe-
cute the same by bringing the person held in custody (and the person
who detains him, if so commanded by the warrant), before the judge
or court, issuing the same, who shall inquire into the cause of his im-
prisonment or restraint, and either discharge, bail, or remand the
party into custody, as directed in this chapter in cases of returns of
writs of habeas corpus.
Art. 73. The person, to whom the warrant mentioned in the three
last preceding articles may be directed, shall, for the execution thereof,
have the same powers, and be bound by the same rules as are desig-
nated in the chapter of this code which relates to the execution of war-
rants of arrest; but the said warrant may be executed in any parish of
the state, into which the party for whose relief it issued, may have
been carried, without any indorsement of such writ, as is required in
cases of arrest.
Art. 74. No fees or emolument whatever shall be received by any
judge, clerk or other officer, for granting a writ of habeas corpus, but
the expences of conducting the prisoner before the court or judge, must
be tendered to the person having charge of him, at the rate of twenty-
five cents for each mile, unless the judge granting the writ, be satisfied
that the applicant is unable to pay such expences, and shall by writing
on the back of said writ, direct that they be advanced by the person
having the custody of the prisoner, and the judge may on the return,
either direct that such expenses be paid by either party, or by the state,
or the parish, as circumstances may render proper.
Art. 75. In all cases where the law does not otherwise specially
provide, every one has a right to dispose of his own person UNCON-
TROLLED by any other individual. When the right is interfered with
by detaining the person against his will, within certain limits, either
by threats, by the fear of injury, or by bonds, or other physical and
material obstacles, the party is said to be CONFINED OF IMPRISONED and
to be in CUSTODY of the person who continues such detention.
A per-
son also has the CUSTODY of another, who does not confine him within
S M
490
CODE OF PROCEDURE.
certain limits, but by menace or force, directs his movements, and
obliges him against his will, to go or remain where he directs.
When no such detention within certain limits exist, but an authority
is claimed and exercised of general control over the actions of the
party against his consent, he is said to be under the RESTRAINT of the
person exercising such control.
In all cases whatever, where such imprisonment, confinement, cus-
tody or restraint exists, which is not authorised by positive law, or is
exercised in a mode or degree not authorised by law, the party ag-
grieved may have relief by writ of habeas corpus.
Art. 76. When a person claiming to be free, shall be held as a slave,
relief may be granted by habeas corpus, and his discharge shall be
full evidence of his liberty against the person claiming him as a slave,
unless he shall within ten days after such discharge, institute a civil
suit, in which he may obtain a sequestration of the body of the party
so discharged, provided he give the security required by law in case of
SEQUESTRATION, and produce such evidence of his property, as will
satisfy the judge of any court having cognizance of the cause, that the
party is a slave, and that the plaintiff is entitled to his services.
But unless such suit be instituted, within the time aforesaid, the party
who held him as a slave, shall be forever barred from making any claim
to the services of the person so discharged; and on the trial of such
suit, the discharge shall be presumptive evidence of the liberty of the
party discharged, and throw the burthen of proof on the person claim-
ing him as a slave.
SECTION III.
How the writ of habeas corpus is served and returned.
Art. 77. This writ is served by delivering the original to the per-
son to whom it is directed, or to him in whose custody, or under whose
restraint the party for whose relief it is intended, is detained. If he
refuse to receive it, he must be informed verbally of the purport of the
writ. If he conceal himself, or refuse admittance to the person charged
with the service, the writ must be fixed in some conspicuous place on
the outside, either of his dwelling-house, or of the place where the
party is confined.
Art. 78. Any free white male person, capable of giving testimony,
may serve the writ.
Art. 79. Its service is proved by the declaration on oath, and in
writing of the person making the service.
Art. 80. It is the duty of the person upon whom a writ of habeas
corpus is served, whether such writ be directed to him or not, to obey
and return the same without delay.
Art. 81. This is done by producing, as directed, the person in-
tended to be released, if in his custody, or under his power or control,
and by making a return in writing on the back of the writ, or annexed
to it, which must state plainly and unequivocally:
1. Whether he have or have not the party in his power or custody,
or under his restraint.
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491
2. By virtue of what authority, or for what cause he took or detains
him.
3. If he had the party in his power or custody, or under his restraint
at any time within three days prior to the date of the writ, but has
transferred such custody or restraint to another; then stating particu-
larly, to whom, at what time, for what cause, and by what authority
such transfer took place.
4. If he have the party in his custody, or under his restraint, by
virtue of any writ or warrant, or other written authority, the same
must be annexed to the return. -
}
Art. 82. The return must be signed by the persons making the
same, and attested on oath.
Art. 83. Whenever a writ of habeas corpus shall be taken out for
any one in custody, by virtue of an order or execution issued for car-
rying into effect the final judgment, sentence or decree of any cOMPE-
TENT tribunal, either of civil or criminal jurisdiction, the officer having
legal custody of such person, need not produce him, unless specially
directed to do so, notwithstanding such execution or order, in the cases
hereafter provided for; but it shall be sufficient to make a return in
writing, annexing the order or execution, by virtue of which the party
is detained. Provided always: that for any special cause for which re-
lief may legally be granted, either set forth in the affidavit, on which
the writ of habeas corpus is issued, or appearing on the return, the
judge may order the prisoner to be brought up, notwithstanding such
final judgment, sentence or decree, and may proceed to give the relief
to which the party is entitled.
Art. 84. The return to a writ of habeas corpus must be made
within twelve hours after the service, or sooner, if required by the writ,
if the party to be relieved by it is within twelve miles of the place of
return. If he be at a greater distance, then he must make the return,
allowing one day for every twenty miles distance, which the party
must travel, in order to make the return, and in proportion for a greater
or less distance.
SECTION IV.
The mode of enforcing a return.
Art. 85. When it appears to the court or judge, issuing the writ,
that it has been duly served, if the person intended to be relieved, is
not produced at the time, which is required by the provisions of this
chapter, the judge, who issued the writ, or if issued by a court, the
said court, or any judge thercof, shall make a warrant, directed to any
executive officer of justice, or other person willing to execute the same,
commanding him to take the person, who has disobeyed the writ, into
custody, and to bring him before the judge or court, which issued the
warrant, to be dealt with according to law; and if, on being brought
before the court or judge, he shall refuse to return the writ, or does
not produce the person he was ordered to bring up, in the cases wherein
he is by the provisions of this chapter obliged to produce him, he shall
be committed to prison, and remain there until the effect of the writ
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shall be produced, and until he shall pay all the costs of the procedure,
and shall moreover be liable to the penalties imposed by law, for dis-
obedience to the said writ, and for any other offence against personal
liberty, of which he may have been guilty, in the imprisonment or de-
tention complained of.
Art. 86. In the case provided for by the last preceding article, the
person intended to be relieved by the writ of habeas corpus, must
be brought up in the manner directed by the second section of this
chapter.
Art. 87. Whenever, from sickness or infirmity of the person di-
rected to be produced, he cannot, without danger of his life, be brought
before the judge, the party in whose custody he is, may state that fact
in the return of the writ; and if it be made to appear, by the certificate
of a physician regularly admitted to practice, and the testimony of two
other witnesses, and the signature of the party intended to be relieved,
if he can write; then, if the judge be satisfied of the truth of the allega-
tion, and if the return be otherwise sufficient, it shall be good without
the production of the person, and the judge may either go to the place
where the prisoner is confined, if he think justice requires it, or he may
proceed, when he is satisfied with the truth of the allegation, as in other
cases, to decide on the return.
Art. 88. The death of the prisoner, or any other INEVITABLE ACCI-
DENT, or SUPERIOR FORCE, will be a good return to excuse the produc-
tion of the prisoner; provided proof of such fact be given to the
perfect satisfaction of the court or judge, issuing the writ; but this as
well as any other matter alleged in any return, may be contested in the
manner hereinafter mentioned.
Art. 89. When any one shall die, while under imprisonment, it shall
be the duty of the person in whose custody he was at the time of his
death, without any delay, to give notice thereof to the coroner of the
parish, or in case of his absence or inability to attend, to a justice of
the peace, who shall summon a jury of householders in the said parish,
to consist of not less than nine, nor more than eighteen, who shall view
the body, and being first duly sworn, shall inquire into the manner in
which the person came by his death; and the said jury shall, in all
cases, cause the body to be inspected by a surgeon or a physician duly
admitted, and examine him as well as all other persons they may call
as witnesses, and if they do not appear, compel their attendance by
warrant. And the said jury, or a majority of them, shall make and
sign an inquest or certificate, stating that they have examined witnesses,
and are satisfied that the body produced to them, is that of such a person
(naming him) and setting forth the manner in which he came by his
death, unless it shall appear to the said inquest, that the death of such
prisoner was caused by a crime; in which case the coroner or justice
shall send the inquest to the court having cognizance of the crime, and
shall immediately issue a warrant for the arrest and commitment of the
party, who shall appear by such inquest to be guilty. And wherever
the death of a prisoner is returned as a reason for not producing him
in the return of a habeas corpus, the inquest proving such death must
be annexed to the return.
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493
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SECTION V.
Of the proceedings on the return.
Art. 90. The judge or court before whom a person is brought on a
habeas corpus, shall examine the return and the papers, if any, referred
to in it, and if no legal cause be shown for the imprisonment or re-
straint; or if it appear, although legally committed, he has not been
prosecuted, tried or sentenced, within the periods for those purposes
respectively limited by law, or that for any other cause the imprison-
ment or restraint cannot legally be continued, he shall discharge him
from the custody or restraint under which he is held.
Art. 91. If it appear that the party has been legally committed for
an offence, BAILABLE OF RIGHT, or if he appear by the testimony offer-
ed with the return, to be guilty of such on offence, although the com-
mitment be irregular, or there be no commitment, he shall bail the pri-
soner, if good bail be offered.
Art. 92. In cases which are not BAILABLE OF RIGHT, the judge has a
discretion, the exercise of which involves a high responsibility. It
must of necessity be left to his sagacity and prudence to distinguish
between those presumptions, which leave a strong probability of guilt
and those which are too slight to justify imprisonment, previous to the
trial. In the latter case only of presumptions, which are not strong,
he may admit to bail. This discretion, however, cannot be exercised
at all. 1st, Where the crime has been freely confessed before a magis-
trate. 2d, Where it is positively and directly charged by the oath of
a credible witness present at the act. 3d, Where an indictment has
heen found, charging the prisoner with an offence not BAILABLE OF
RIGHT.
Art. 93. If the party be not entitled to his discharge, and cannot
be bailed, the judge must remand him to the custody, or place him un-
der the restraint from which he was taken, if such custody or restraint
be legal, or otherwise place him in the custody or power of such per-
son, as by the law of the state, he is entitled thereto.
Art. 94. If the judge cannot immediately determine the case, he
may until judgment be given on the return, either place him in the
custody of the sheriff of the parish where the return is made, or place
him under such care, and in such custody, as his age or other circum-
stances may require.
Art. 95. If it be shown by the return that the person is detained
by virtue of an informal or void commitment, yet if from the docu-
ments on which it was made, or from other proof, it appear that there
is good cause for commitment, the prisoner shall not be discharged-
but the judge or court before whom he is brought, shall either commit
him for trial, or admit him to bail, in cases where, by law, he may be
bailed.
Art. 96. In order to enable the judge, before whom a return to a
writ of habeas corpus is made, to perform the duty required by the last
preceding section, the officer having the custody of any person com-
mitted for any offence, for whose relief such writ is granted, must show
the same to the magistrate who made the commitment, or to the clerk
of the court, (if the papers relative to the commitment have been deliv-
494
CODE OF PROCEDURE.
ered to him,) and it shall thereupon be the duty of such magistrate or
clerk, to attend at the hour and place of the return, and exhibit to
the judge or court, to which the same is made, all the proofs and docu-
ments relative to the said commitment; and if such magistrate or clerk
neglect to attend, the judge or court is authorized, on proof of his
having had the notice required by this article, to enforce his attendance
by warrant of arrest, and the party when arrested, shall be kept in
custody until he perform the duty required by this article.
Art. 97. When it appears by the return that the person soliciting
his discharge, is in custody, on any civil process, or that any other per-
son has an interest in continuing his imprisonment or restraint, no order
shall be given for his discharge, until it appear that the plaintiff, in
such civil suit, or the person so interested, or their attorneys or agents,
if either are within twenty miles, have had reasonable notice of the
issuing of such writ of habeas corpus.
Art. 98. The party brought before the judge on the return of the
habeas corpus, may deny any of the material facts set forth in the
return, or allege any fact, to show either that the imprisonment or de-
tention is unlawful, or that he is entitled to his discharge, which alle-
gations or denials, must be on oath; and thereupon the judge shall
proceed in a summary way, to hear testimony, and the arguments, as
well of the party interested, civilly, if any there be, as of the prisoner,
and the person who holds him in custody, and shall dispose of the pri-
soner as the case may require.
Art. 99. If it appear on the return, that the prisoner is in custody
by virtue of process from any court legally constituted, he can be dis-
charged only in one of the following cases:
1. Where the court has exceeded the limits of its jurisdiction, either
as to matter, place, sum or person.
2. Where, though the original imprisonment was lawful, yet by
some act, omission or event, which has taken place afterwards, the
party has become entitled to his liberty.
3. Where the process is defective in some substantial form required
by law.
4. Where the process, though in proper form, has been issued in a
case, or under circumstances where the law does not allow process or
orders for imprisonment, or arrest to issue.
5. Where, although in proper form, the process has been issued or
executed by a person either unauthorised, or improperly authorised to
issue or execute the same, or where the person having the custody of
the prisoner under such process, is not the person empowered by law
to detain him.
6. Where the process appears to have been obtained by false preten-
ces or bribery.
7. Where there is no general law, nor any judgment, order or decree
of a court, to authorise the process, if in a civil suit, nor any conviction,
if in a criminal proceeding.
But no judge or court, on the return of a habeas corpus, shall in
any matter inquire into the legality or justice of a judgment or decree
of a court legally constituted, and in all cases where it appears that
there is a sufficient legal cause for the commitment of the prisoner
for an offence, although it may have been informally made, or with-
out due authority, or the process may have been executed by a per-
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495
son not duly authorised, the judge shall make a new commitment, in
proper form, and directed to the proper officer, or admit the party to
bail if the case be bailable.
Art. 100. The order of discharge made by a court or judge, on the
return of a habeas corpus, has no other effect than that of restoring
the party to liberty, and securing him from any future imprisonment
or restraint for the same; it is not conclusive, as to any other civil
right, except with respect to persons claimed as slaves, which is herein
specially provided for.
Art. 101. No person who has been discharged by order of a court or
judge, on a habeas corpus, shall be again imprisoned, restrained or
kept in custody for the same cause, unless he be afterwards indicted
for the same offence. But it shall not be deemed to be the same cause.
1. If after a discharge for defect of proof, or for any material defect
in the commitment, in a criminal case, the prisoner should be again ar-
rested on sufficient proof, and committed by legal process for the
same offence.
2. If in a civil suit, the party has been discharged for any illegality
in the judgment or process, and is afterwards imprisoned by legal pro-
cess, for the same cause of action.
3. Generally, whenever the discharge has been ordered on account
of the non-observance of any of the forms required by law, the party
may be a second time imprisoned, if the cause be legal, and the forms
required by law observed.
Art. 102. When a judge, authorized to grant writs of habeas corpus,
shall be satisfied that any person in legal custody, on a charge for any
offence, is afflicted with a disease, which will render a removal necess-
ary for the preservation of his life, such judge may order his removal,
on his giving bail with two securities, in such sum as shall be ordered
by the judge, that he will surrender himself to the same custody, when-
ever he shall be thereunto required, or the judge may in such case,
where the prisoner is manifestly unable to procure bail, put him in the
custody of an executive officer of justice, whose duty it shall be to
watch over the said prisoner in the place to which he may be removed,
to prevent his escape. Provided, that the fact of such disease, and
the necessity of removal, shall appear by the oaths of two physicians.
or surgeons duly admitted to practice, and that the physican who shall
attend on such prisoner after his removal, shall also take an oath that
he will give notice to a magistrate as soon as in his opinion the said
prisoner may safely be returned to his imprisonment, which magis-
trate shall, on receiving such notice, issue a warrant for his removal to
the place in which he was formerly confined.
SECTION VI.
General provisions.
Art. 103. No person shall be discharged under the provisions of this
chapter, who is in custody on a commitment for any offence exclusively
cognizable by the courts of the United States, or by order, execution or
process, issuing out of such courts, in cases where they have jurisdic-
tion, or who is held by virtue of any legal engagement, or enlistment in
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CODE OF PROCEDURE.
the army, or who, being subject to the rules and articles of war, is con-
fined by any one legally acting under the authority thereof, or who
is held as prisoner of war, under the authority of the United States.
Art. 104. There is no other writ of habeas corpus known in the law
of this state, but that described and provided for in this chapter.
Courts having occasion to direct the production of prisoners before
them, either to prosecute, to give testimony, or for any other purpose
than that of examining into the cause of their imprisonment, may com-
mand the production of such prisoners by an order of court, entered
on their minutes, and certified to the officer having charge of such
prisoner.
SECTION VII.
Penalties for the breaches of the duties enjoined by this chapter.
Art. 105. Any judge empowered by this chapter, to issue writs of
habeas corpus, who shall refuse to issue such writ, when legally ap-
plied to, in a case where such writ may lawfully issue, or who shall
unreasonably delay the issuing of such writ, or who, in cases where
such writ is allowed to issue without any proof, shall WILFULLY omit
to issue, or wilfully and unreasonably delay the issuing such writ,
shall for every offence be fined in the sum of two thousand dollars.
Art. 106. Any judge so authorized, who shall refuse, or wilfully
omit to perform, any other of the duties imposed on him by this chap-
ter, or shall unreasonably delay the performance thereof, by which re-
fusal, omission or negligence, any illegal imprisonment is caused or
prolonged, shall be fined in the sum of one thousand dollars.
Art. 107. Any executive officer of justice to whom a writ of habeas
corpus, or any other warrant, writ or order, authorized by this chap-
ter, shall be directed, delivered or tendered, who shall refuse, or
neglect to serve or execute the same, as by this chapter is directed,
or who shall unreasonably delay the service or execution thereof, shall
be fined in the sum of one thousand dollars.
Art. 108. Any one having the person in his custody, or under his
restraint, power or control, for whose relief a writ of habeas corpus
is issued, who, with the intent to avoid the effect of such writ, shall
transfer such person to the custody, or place him under the power or
control of another, or shall conceal him, or change the place of his
confinement, with intent to avoid the operation of such writ, or with
intent to remove him out of the state, shall be fined in the sum of two
thousand dollars, and may be imprisoned at hard labour, not less than
one nor more than five years.
Art. 109. In a prosecution for any penalty incurred, under the last
preceding article, it shall not be necessary to show that the writ of
habeas corpus had issued at the time of the removal, transfer or con-
cealment therein mentioned, if it be proved that the acts therein for-
bidden, were done with the intent to avoid the operation of such writ.
Art. 110. Any one having the person for whose relief a writ of habeas
corpus is issued, in his custody, or under his power or control, who,
(without being guilty of any of the acts made punishable by the last
CODE OF PROCEDURE.
497
preceding article) shall, after being legally served with such writ, neg-
lect or refuse to produce such person, in cases where, by the provi-
sions of this chapter, he is bound to produce him, shall be fined in
the sum of one thousand dollars.
Art. 111. Any person to whom a writ of habeas corpus is directed,
and on whom it is duly served, who shall neglect or refuse to make
a return thereto, in the manner directed by the third section of this
chapter, shall be fined in the sum of five hundred dollars, even if be
have not the party whom it is intended to relieve in his custody, or
under his power or control.
Art. 112. Any sheriff or his deputy, any jailor or coroner, having
custody of any prisoner, committed on any civil or criminal process
of any court or magistrate, who shall neglect to give such prisoner a
copy of the process, order or commitment, by virtue of which he is
imprisoned, within three hours after demand, shall be fined in the
sum of five hundred dollars.
Art. 113. Any magistrate who, on receiving notice of the issuing of a
habeas corpus for any person committed by him for any offence, shall
neglect to attend at the return of the habeas corpus, in the manner di-
rected in this chapter, shall be fined in the sum of three hundred dol-
lars; unless, before receiving such notice, he shall have returned the
papers relative to such commitment, to the clerk of the court having
cognizance of the cause.
Art. 114. Any person who, knowing that another has been dis-
charged by order of a competent judge, on a habeas corpus, shall, con-
trary to the provisions of this chapter, arrest or detain him again for
the same cause, which was shown on the return of such writ, shall be
fined in the sum of five hundred dollars for the first, and one thousand
five hundred dollars for a second offence.
Art. 115. Any able bodied male inhabitant of this state, above the
age of eighteen and under fifty years of age, who shall, when legally
called on for that purpose, refuse to aid a magistrate, executive officer
of justice, or other person, legally authorized to serve or execute any
writ, commitment or order, issued by virtue of this chapter, in the ser-
vice or execution of such writ, warrant or order, shall be fined in the
sum of fifty dollars.
Art. 116. The recovery of the said fines shall be no bar to a civil suit
for damages, or to a criminal prosecution, for such of the said acts or
omissions as may, in the third book of this code, be declared to be
an offence.
CHAPTER VIII.
Of suppressing permanent offences against property, and of the dis-
position of personal property, seized and supposed to be stolen.
Art. 117. Permanent offences against personal property, by a crimi-
nal taking, may be suppressed either by civil suit for its restoration, or
by the means herein before directed of a search warrant, or by resist-
ance to the unlawful taking.
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CODE OF PROCEDURE.
Art. 118. In all cases of a conviction for a criminal taking or deten-
tion of personal property, which is taken with the offender or in his
possession, or where without such conviction the property is found on
a search warrant, or is detained in the hands of an officer of justice on
suspicion of being stolen; on satisfactory proof of ownership, it shall be
restored to the owner.
Art. 119. No property coming to the possession of a magistrate,
court or officer of justice, by any of the means described in the last
preceding article, shall be restored to any one claiming as owner until
after notice published for fifteen days, describing the property and de-
signating the person from whom it was taken, or the place where it
was found, and requiring all persons having any claims, to make them
known.
Art. 120. If no more than one claimant appear, the property shall,
without prejudice to any other civil claim, be delivered to him on his
making oath to the ownership. If more than one claimant appear, the
property shall remain sequestered in the hands of the sheriff, until by
a civil suit the rights of the parties be determined.
Art. 121. If no claimant appear, the property shall be sold at auction,
and the proceeds paid to the treasurer of the state, and if no claim be
made on him by any person claiming as owner within one year, it shall
be carried to account of the Recompense Fund, hereinafter designated.
Art. 122. If an indictment or information be presented against any
one for a violent dispossession of real property, contrary to the pro-
visions of the Code of Crimes and Punishments, it shall be tried in
preference to any other, except those for offences punishable with impri-
sonment for life; and an information may be filed when the court is not
in session by permission of the judge, who shall thereupon hold a special
court for the trial of such offence.
Art. 123. If the defendant be convicted, the person aggrieved shall
be restored to, and maintained by the court in, possession of the pro-
perty against the person convicted, until the right shall be determined
by a civil suit, if any be brought.
TITLE III.
OF THE MANNER OF CALLING FOR AND EMPLOYING THE MILITARY FORCE OF THE
STATE IN AID OF THE CIVIL POWER.
Art. 124. Neither the militia nor any other military force shall be
employed in the aid of the civil power, or brought to act in a military
capacity against any persons in the state, unless it be called for in the
manner directed by this title; and when so called for shall be subject
to the regulations hereinafter prescribed.
CODE OF PROCEDURE.
499
CHAPTER I.
Of the manner and cases in which the military force may be
required.
Art. 125. When any three magistrates, of whom a judge must al-
ways be one, shall be convinced by the affidavits of two inhabitants of
the state, that a RIOT or INSURRECTION has taken place in the parish
in which the persons making the affidavit reside, and that the persons
engaged therein cannot be arrested or dispersed by the ordinary force
of civil authority, they shall make a written application to the governor,
requesting military aid.
Art. 126. If the governor be at such a distance from the place at
which the riot or insurrection exists, as is two great to enable him to
give the necessary orders in time for its suppression, a copy of the ap-
plication shall be also sent to the nearest field officer of ordinary militia
or of any independent corps, containing the same request.
Art. 127. The application must be signed by the magistrates, must
state the substance of the testimony offered to them, and the place and
probable object of the riot or insurrection, and it must designate the
number of men required for the purpose of suppressing it.
Art. 128. Immediately after receiving such application, the governor
or officer to whom it is directed, shall order the number of men specified
therein, to march with arms and ammunition under the command of
the requisite officer, and place themselves under the direction of the
magistrates signing the application.
Art. 129. The governor or the officer to whom the application is
made, may, notwithstanding the designation of the number of men in
the application, order as many more as he may deem necessary, to be
embodied and hold themselves in readiness, if those sent for the pur-
pose should prove insufficient to overcome the resistance that may be
offered; and if the resistance should be continued, the men so kept
in readiness may be employed without further requisition from the
magistrate.
CHAPTER II.
Of the manner in which the military force is to be employed.
Art. 130. The officer commanding the troops detailed in compliance
with the application of the magistrates, shall immediately repair to the
place designated, and post the troops in such a manner as to intervene
between the persons or the property that it may be the intention of the
rioters or insurgents to attack. He shall then act entirely on the defen-
sive, not suffering the men to fire, and permitting them to use their
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CODE OF PROCEDURE.
edged or pointed weapons only to repel actual violence, except in one
of the following cases.
1. If an attack be made on any one of the militia by which his life
is in danger, or if an attempt be made to disarm him, which he cannot
otherwise avoid, he may defend himself by discharging his fire-arms.
2. If a general attack be made by the insurgents or rioters upon the
militia with fire-arms, or by missile or other weapons, by which the
lives of the men are indiscriminately put in danger, the officer may
order the men to fire, but not until an endeavour has been made to dis-
perse the rioters by means less dangerous to persons who may not be
engaged in the offence.
3. If the troops cannot be so placed as to intervene between the
rioters and the persons or property which they apparently intend to
attack, and the illegal purpose of the riot is persevered in, by means
evidently dangerous to the lives of others, although no attack be made
on the troops themselves, the magistrates, or any two of them, may di-
rect the officer to disperse the rioters, which he is authorised to do, by
ordering the men first to use the bayonet or sword, and if they prove
ineffectual to disperse the assembly, but not otherwise, then to discharge
their fire-arms against them.
4. The troops shall not be brought up to the place until the white
flag has been displayed by a magistrate, and warning given to disperse,
in the manner directed by the
article of the Code of Crimes and
Punishments, and unless in defence against an attack dangerous to life,
no order shall be given or obeyed to make any discharge of fire-arms,
or other use of any other arms than for defence, until half an hour shall
have elapsed after the displaying of the white flag and the giving the
warning to disperse.
5. Every endeavour must be used both by the magistrates and of
ficer commanding the troops that can be made consistently with the
preservation of life, to induce or force the rioters or insurgents to dis-
perse before any attack is made upon them by which their lives may
be endangered.
BOOK II.
OF THE MODE OF PROSECUTING OFFENCES.
TITLE I.
OF ARREST AND BAIL.
CHAPTER I.
Definitions and general principles, relative to the subject of this
title.
Art. 131. A complaint is the allegation made to a proper officer, that
some person, whether known or unknown, has been guilty of a desig-
nated offence.
Art. 132. No complaint can have a legal effect, unless it be supported
by such evidence as shall show that an act which constitutes an offence
has been committed, and renders it certain or probable, that it was com-
mitted by some person named or described in the complaint. It is
then called an ACCUSATION.
Art. 133. The evidence mentioned in the last preceding article may
be taken without the knowledge of the party accused, or the effect of
the law might be evaded by his escape. But he cannot be condemned
on such evidence; he must have an opportunity of explaining or con-
tradicting it before the judges who are finally to decide on his inno-
cence or guilt. This investigation is called the TRIAL. It necessarily
requires some delay, but public justice requires that during this interval,
the person of the accused should be secured, in order that he may un-
dergo the penalty of the law, if he be found guilty. This is affected
by an ARREST.
Art. 134. As it would be oppressive in most cases to deprive the
accused of his liberty before trial and conviction, if he can give a suf-
ficient pledge for his appearance at the trial, the law restores him to
his liberty on his giving such pledge. This pledge is called BAIL.
Art. 135. There are cases in which the accused is bailable of right,
others in which it is discretionary with the judge to admit to bail, and
some in which no bail can be taken. The rules relative to these several
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distinctions are laid down in a subsequent chapter of this title, and in
the chapter of the preceding book relative to writs of habeas corpus.
CHAPTER II.
Of the mode of making a complaint and accusation, and of ordering
an arrest.
SECTION I.
Of complaints and accusations, and who may receive them.
Art. 136. Any judge of any court, any mayor or justice of the peace,
of the state, is authorized to receive complaints and accusations for of-
fences; to issue warrants, order arrests, make commitments, and take
bail in the manner directed by this code. They are designated under
the general term, MAGISTRATE.
Art. 137. Any person, even those incapable of giving testimony,
may make complaint to a magistrate.
Art. 138. When a complaint shall be made to a magistrate, he shall
reduce the declaration of the complainant to writing, and if he be a
person capable of giving testimony, shall administer an oath, that the
said declaration contains the truth, and shall cause it to be signed in
his presence, and shall then proceed to take such other testimony as
shall be offered him to prove the offence, or designate the offender,
causing each declaration to be SIGNED by the declarant, and attested on
oath.
Art. 139. If it appear probable to the magistrate than any other per-
sons have knowledge of any material fact or circumstance relative to
the complaint, it is his duty to summon and examine them on oath,
touching the matter of the complaint.
SECTION II.
Of warrants of arrest, and citation.
Art. 140. When a magistrate from the complaint or accuation, or
other evidence taken before him, is convinced that an offence has been
committed, and has reason to believe, that any person who can be
sufficiently designated by name or description, has committed such of-
fence, it shall be his duty to issue a WARRANT OF ARREST, or CITATION,
according to the discretion hereinafter vested in him.
Art. 141. When an offence is committed in the presence of a magis-
trate, he may issue a warrant of arrest, although no complaint or accu-
sation be brought before him; but in such case the warrant must be
returnable before some other magistrate, and the magistrate signing
the same, must reduce his own testimony to writing, and prior to any
CODE OF PROCEDURE.
503
commitment or holding to bail, attest the same before such other ma-
gistrate on oath.
+
Art. 142. A warrant of arrest is an order in writing, directing a per-
son, accused or suspected of having committed an offence, to be brought
before a magistrate or court of examination.
Art. 143. This warrant may be issued by the governor of the state,
by any court having any criminal jurisdiction, or any magistrate.
Art. 144. It must be directed to the person who is to execute it,
either by name, or by his official designation. In the latter case it
may be directed specially to a particular officer, or generally to all
officers of the same description: when so generally directed, any
officer of that description, to whom it is delivered, must execute it.
It must describe the party suspected or accused, by name, or by
such other designation, as may sufficiently distinguish him, and it
must contain an order to arrest and bring him before some court or
magistrate for examination. The offence of which the person to be
arrested is accused or suspected, must be set forth, either by its legal
appellation, or it must be substantially described.
It must be signed by the magistrate, or by the clerk of the court
which issues it.
War-
Art. 145. Warrants of arrest may be directed to a sheriff or his
deputy, or to a constable. These are called officers of justice, and
they are bound to execute any legal warrant directed to them.
rants may also be directed to individuals, who are not such officers,
but they are under no obligation to execute such warrant unless they
have undertaken so to do; in which case they are bound by the same
rules, and are subject to the same penalties for neglect or misconduct,
as officers are.
SECTION III.
In what cases an arrest may be made without warrant.
Art. 146. Where a CRIME, or a BREACH OF THE PEACE has been
committed, and the offender shall endeavour to make his escape, if
there is a good reason to believe that he will effect it, before a war-
rant can be obtained, he may be arrested by virtue of a verbal order of
any magistrate, or without such order, if no magistrate be present.
Art. 147. Any one in the act of committing a crime, may be ar-
rested by any person present, without a warrant.
Art. 148. Whenever a CRIME is committed, and the offenders are
unknown, and any person shall be found near the place where the
crime was committed, either endeavouring to conceal himself, or en-
deavouring to escape, or under such other circumstances as justify a
REASONABLE SUSPICION of his being the offender, such person may
be arrested without warrant.
Art. 149. In cities and towns, even in cases where it is not certain
that an offence has been committed, it is the duty of officers of justice
and persons employed in such cities and towns as watchmen, without
warrant to arrest and detain for examination, such persons as may be
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CODE OF PROCEDURE.
found at night, under such circumstances as justify a reasonable sus-
picion that they have committed or intended to commit an offence.
SECTION IV.
Of citations.
Art. 150. In cases of misdemeanour, when no danger appears of the
defendant's absconding, the magistrate, instead of a warrant of arrest,
may issue a citation in the form provided for by this code.
Art. 151. The citation may be served, either by leaving a copy
with some person above the age of puberty who shall be found at the
dwelling house of the defendant, or by delivering such copy per-
sonally to him.
Art. 152. If the defendant do not appear at the time and place of
the return of the citation, when it has been duly served, the magistrate
shall issue a warrant of arrest.
CHAPTER III.
Of the duty and powers of officers of justice and others in making
arrests.
Art. 153. At or before the time of making an arrest, the person who
makes it must declare that he is an officer of justice, if such be the
case. If he have a warrant, he must show it if required; or if he
make the arrest without warrant in any of the cases in which it is
authorized by law, he must give the party arrested clearly to under-
stand, for what cause he undertakes to make the arrest, and must
require him to submit and accompany him to the magistrate.
Art. 154. The arrest is complete as soon as such notice is given as
is required by the last preceding article; provided, the party in-
tended to be arrested, from his situation and other circumstances, may
reasonably be supposed to have heard the said notice, and to have
known that it was addressed to him.
Art. 155. In all cases where the person arrested refuses to submit to
the arrest, or to proceed to the magistrate for examination, or attempts
to escape, such degree of force may be used as is necessary to compel
his appearance. But when he submits to the arrest, and neither
attempts to escape nor make resistance, PERSONAL VIOLENCE shall not
be used, nor shall BLOWS, STRIPES or WOUNDS be inflicted in any case,
as a means of enforcing submission to the arrest, except so far as is
hereinafter specially provided.
Art. 156. He who makes an arrest, may take from the party arrested
all OFFENSIVE WEAPONS which he may have about his person, and
must deliver them to the magistrate who takes the examination, to be
disposed of according to law.
Art. 157. No person who shall kill or wound another, intentionally
CODE OF PROCEDURE.
505
or unintentionally, by the use of such means as would probably pro-
duce death, shall be justified or excused for such killing or wounding,
although he prove that the party killed or wounded endeavoured to
escape from an arrest; but if the party arrested or attempted to be
arrested, shall, after receiving the notice provided for in the first article
of this chapter, make resistance with DEADLY WEAPONS, the person
making the arrest may also use such weapons, where they are necess-
ary for his defence and to repel any forcible opposition to the execu-
tion of the arrest; and in such case, if wounds or death ensue, the
party making the arrest shall be justified. This article does not
extend to prisoners breaking out, or endeavouring to break out of
prison when lawfully arrested; in such case, the person having custody
of the prisoner, and others employed by him, may lawfully use offen-
sive weapons to prevent the breach of the prison.
Art. 158. If, after a lawful arrest has been made, any one shall, by
force, rescue or attempt the rescue of the prisoner, or before the arrest
has been made, shall by force attempt to prevent it from being made,
the person having the prisoner in custody, or authorized to make the
arrest, and others who may be lawfully aiding him, may resist such
force, and in doing so may use deadly weapons, whenever it may be
necessary to prevent this rescue, or overcome resistance to the arrest.
The provisions of this article extend to all cases where a person is
in lawful custody.
Art. 159. In all cases of arrest for examination, the person making
the same must, without unnecessary delay, conduct the party arrested
before the court or magistrate by whom the warrant was issued, or, if
the arrest was made without warrant, before the nearest magistrate
in the parish.
Art. 160. Until the person arrested can be brought before the
court or magistrate, and during the examination he remains in the
custody of the person making the arrest, or of some officer of justice
appointed by the magistrate or court.
Art 161. Watchmen in cities or towns, and officers of justice having
charge of prisoners any where, are authorized to receive persons
arrested for examination, when necessary, for their safe custody du-
ring the night or at other times when they cannot be brought before
the court or magistrate for examination, and to deliver them again to
the party who made the arrest; but in all such cases, the person hav-
ing charge of the prison, shall take a copy of the warrant if the arrest
is made by warrant, or of a declaration of the cause of the arrest in wri-
ting, signed by the party making the arrest, if it be one made without
warrant.
Art. 162. If the magistrate who shall issue any warrant of arrest,
shall be absent at the time when it is returned, or unable from what-
ever cause, to examine the prisoner, the person, in whose custody he
is, must conduct him before some other magistrate in the same parish,
and in such case the complaint and affidavit on which the warrant was
granted must be sent to the magistrate before whom the prisoner was
taken, or if they cannot be procured, the complainant and witnesses
must be summoned to give their testimony anew.
Art. 163. Warrants of arrest may be executed in any parish of the
state, provided the person authorized to execute such warrant shall pro-
cure the allowance of some magistrate in such parish, which he is re-
30
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CODE OF PROCEDURE.
quired to give on being satisfied that the warrant is not forged, and that
the person presenting it, is the person to whom it is directed.
This allowance shall be made by writing on the warrant the word
"allowed," with the name of the parish and the date of the allowance
signed with the name of the magistrate who makes it. In whatever
parish the arrest be made, the prisoner shall be brought to the parish
in which the warrant for his examination was issued.
Art. 164. Arrests may be made on any day and at any hour of the
day or night, and at any place within the state, under the several mo-
difications provided in this section.
Art. 165. If the person accused shall fly into any HOUSE, or other
BUILDING, in order to avoid arrest, any one having authority in the
manner directed in this chapter to arrest him, may follow him into the
said house, and when entered, he may, for the purpose of making the
arrest, break any inner door of any apartment, in such house where the
accused may be, if entrance be refused.
Art. 166. If the door be not opened when required, it is a refusal of
entrance.
Art. 167. No one is authorized to break the outer door of a house
in order to make an arrest, but an officer or other person having a war-
rant of arrest, and those who are lawfully assisting him, except as is
provided in the next article.
Art. 168. In cases where, by any of the preceding articles, arrests
are authorized to be made without warrant, the person so authorized,
may justify breaking the outer door of any house, or in any other man-
ner forcing an entrance therein, without warrant, in cases of such crimes
only as are punishable by an imprisonment for life.
Art. 169. No outer door of any house can in any case be broken, or
an entrance forced therein, in order to make an arrest, without the fol-
lowing formalities:
Entrance must be demanded in a loud voice.
Notice must be given in the same manner that the party is the bearer
of a warrant of arrest.
Or if it is a case in which the arrest is lawful without warrant, that
information must be substantially given in an audible voice.
If the arrest is attempted to be made at night, two householders of
the parish, required for the purpose, must be present, who must an-
nounce their names to those within.
Art. 170. All inhabitants of the state when called on by a magistrate
or officer of justice, are bound to assist in making arrests and securing
the persons arrested, and are justified in doing all acts in rendering
such aid, which the officer himself might do.
Art. 171. If any person who has been lawfully arrested shall escape
or be rescued from custody, either before or after commitment, the
person from whose custody he escaped may lawfully pursue and arrest
him by virtue of the original warrant or commitment in any part of
the state, and convey him back to his former custody.
CODE OF PROCEDURE.
507
CHAPTER IV.
Of the duty of magistrates in taking examinations and making
commitments.
Art. 172. When the person accused is brought before a magistrate
for examination, he shall be informed of the accusation against him ;
the examinations of the witnesses, which have been taken, shall be
read to him; and, if he request it, the witnesses (if they are yet alive
and within the state) shall be summoned to attend, and they, as well as
any additional witnesses who are produced, may be cross examined by
the acccused or his counsel.
Art. 173. The magistrate shall then proceed to the examination of
the person accused in the following manner :
1st. He must be informed that, although he is at liberty to answer in
what manner he may think proper to the questions that shall be put to
him, or not to answer them at all, yet a departure from the truth, or a
refusal to answer without assigning a sufficient reason, must operate as
a circumstance against him, as well on the question of commitment as
of his guilt or innocence on the trial.
2d. The magistrate shall next put the following interrogatories to
the person accused :
What is your name and age?
Where were you born?
Where do you reside, and how long have you resided there?
What is your business or profession?
Where were you at the time the act (or omission) of which you are
accused is stated by the witnesses to have taken place?
Do you know the persons who have been sworn as witnesses on the
part of the accusation, or any, and which of them, and how long have
you known them ?
Give any explanation you may think proper of the circumstances
appearing in the testimony against you, and state any facts that you
think will tend to your exculpation.
3d. If any writing, or any article of property, be produced in evi-
dence, it must be shown to him, and he must be asked whether he re-
cognises it.
4th. The answers of the accused to the several interrogatories shall
be reduced to writing by the magistrate, or some one by his order. They
shall be shown or read to the accused, who may correct and add to them;
and when made conformable to what he declares is the truth, may be
SIGNED by him; but if he refuses to SIGN, his reason shall be stated in
writing, as he gives it, by the magistrate himself; and the examination
shall be signed and certified by the magistrate, whether the accused
sign it or not. This examination is not to be on oath.
Art. 174. After the examination of the accused is finished, his wit-
nesses, if he have any, shall be sworn and examined, and their exam-
inations reduced to writing and signed by them respectively, after they
have been read, corrected (if necessary by them), and approved.
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CODE OF PROCEDURE.
Art. 175. The witnesses shall not be present at the examination of
the person accused; and while one of them is examined, the others
shall be kept apart.
Art. 176. All the examinations, depositions, and other proof, shall
be kept by the magistrate, to be disposed of as is hereinafter directed.
Art. 177. If the accused or the public prosecutor request that a fur-
ther examination take place, the magistrate may, at his discretion, post-
pone the examination to a future day; and either continue the prisoner
verbally in the custody of the officer by whom he was brought before
him, or give a written commitment to the keeper of the prison of the
parish; in which commitment it will be necessary only to state, that
the party is committed for further examination on a complaint of (stat-
ing the offence).
Art. 178. After being once committed for further examination, the
prisoner may be verbally ordered to be brought up and REMANDED from
time to time, as long as the examination continues.
Art. 179. The effect which the examinations and depositions, taken
before the magistrate, is to have on the trial, is set forth in the Code of
Evidence.
Art. 180. It is the duty of the magistrate, before whom a prisoner
is brought for examination, to address him without passion. He must
neither use menace, nor hold out hopes of impunity or reward, in or-
der to influence him.
Art. 181. In cases of difficulty, other magistrates of the same parish
may assist at the examination and offer the sitting magistrate their ad-
vice, but he must decide, except on questions of bail, as is herein after
provided.
Art. 182. The prisoner may have the assistance of such counsel as
he may employ, but the magistrate has no authority to assign counsel.
Art. 183. Whenever the accusation is for a crime, the magistrate
shall, and on all other occasions may, give notice to the public prosecu-
tor to attend the examination; and it shall be his duty, on such occasions,
to attend and examine the witnesses, and argue all questions of law
and fact that may arise in the course of the investigation.
Art. 184. The magistrate has the same powers for preserving order,
during the examinations, that are vested in courts by the chapter of the
Code of Crimes and Punishments relative to offences against the judi-
ciary power committed in a court of justice; and the magistrate may,
on his own view, immediately make a commitment for trial for any of
the said offences.
Art. 185. The magistrate shall, on the application of the accused or
the public prosecutor, issue summonses to the witnesses that may be re-
quired by either, which shall be served by any officer of justice; and
if they refuse to attend, they may be brought up by warrant; and any
witness refusing to answer a legal question, may be committed to pri-
son until he shall agree to answer.
Art. 186. After hearing the proof, and considering the allegation, if
any be made by the accused, the magistrate must determine, whether
he be legally charged with the offence of which he is accused, or any
other offence, or there be sufficient reason to believe him guilty thereof.
In either case, that is to say, if the charge be positively proved by a
credible witness, although there be exculpatory proof, or although there
be no such direct proof, but the circumstances detailed induce a belief
that he is guilty, he must be bailed or committed.
CODE OF PROCEDURE.
509
Art. 187. A commitment is an order directed to the sheriff of the
parish, commanding him to keep the prisoner in safe custody, to an-
swer a charge for the offence of which he is accused (specifying the
same particularly), until he shall be released by law. This commitment
must, in substance, contain a direction to the sheriff or his deputy, or the
keeper of the jail, either by the style of his office, or by name, or both.
An allegation that the person (naming or describing him), is charged
on oath with an offence, (specifying it either by the legal appellation
of the offence, or substantially stating the act which has been charged.)
An order to receive the prisoner and detain him until he shall be
discharged by law.
It must be signed by the magistrate issuing it, or if issued by a court,
the commitment must be under its seal and signed by the clerk.
Art. 188. No person shall be discharged for any defect of form in
the commitment, if it can be sufficiently understood from the language
thereof, in its usual signification, that the officer detaining him is the
person to whose custody persons accused of offences may be legally
committed; that the prisoner is legally charged with some offence; and
that the commitment be signed by a magistrate authorized to make
commitments.
Art. 189. The commitment shall be delivered to an officer of justice,
whose duty it shall be to take charge of the prisoner, without other
warrant, and convey him without delay to the officer who is directed
to receive him.
Art. 190. But if the offence be BAILABLE OF RIGHT, or if not bailable
of right, and the proof is not evident nor the presumption great, the
magistrate cannot commit the prisoner, if he offers good bail.
duty, in taking bail, is set forth in the next chapter.
His
Art. 191. If it appear from the testimony, that the prisoner is guilty
of any other offence than the one of which he was originally accused,
he shall be committed or bailed for such offence.
CHAPTER V.
Of the duty of the magistrate in taking bail.
وو
Art. 192. The constitution declares, that all persons shall be baila-
ble, except for capital offences, whenever the proof is evident or pre-
sumption great.' At the time of adopting the constitution the capital
offences were murder, rape, exciting insurrection among slaves, and
stabbing or shooting or poisoning with intent to murder; therefore, all
other offences are and must be bailable. Persons accused of the of-
fences above enumerated, are also to be bailed when the proof is not
evident nor the presumption strong.
Art. 193. A single justice of the peace may admit to bail in all cases
of misdemeanor, and in cases of crime where the punishment is impri-
sonment at hard labour for a term not exceeding six years.
In cases
where the punishment exceeds that term, but is less than fifteen years,
the assent of two justices is necessary for determining the amount of
bail and approving the security. In all other cases the bail must be
taken before a judge.
510
CODE OF PROCEDURE.
When homicide is directly proven or admitted on an examination
before a justice, the prisoner cannot be admitted to bail by the justice
alone without the assent of a judge, notwithstanding any allegation or
proof of justification, excuse or alleviation. He must, in such case, be
committed; and, if the circumstances require it, afterwards bailed, or
relieved on habeas corpus.
Art. 194. Bail is given by the prisoner and his surety signing a
RECOGNIZANCE, conditioned for the appearance of the prisoner at the
next session of a court of competent jurisdiction, to be named in the
condition, and to abide the judgment of such court.
Art. 195. When bail is given, the prisoner must be discharged with-
out exacting from him the payment of any fees.
Art. 196. In all cases where a crime is charged, and from the nature
of the offence any proof or presumption of guilt may reasonably be
supposed to be drawn from any article in the possession of the prisoner,
the magistrate may direct him to be searched in his presence, and shall
preserve all things found on him which may be useful to be produced
on the trial, and afterwards disposed of according to law.
Art. 197. Where the offence charged is the illegal infliction of a
wound, or any other injury, which may terminate in the death of the
person injured, and the offence be proved or confessed, the magistrate
cannot discharge, if it appear from the examination of surgeons that there
is a probability that death will ensue in consequence of such injury. In
this case the party must be committed for further examination, until
the consequences of the injury can be ascertained.
Art. 198. No justice of the peace can let any prisoner to bail after
he has been committed for trial; the power of these magistrates, on this
subject, is confined to cases where persons are brought before them for
examination.
Art. 199. The amount of bail cannot be apportioned by law to the
circumstances of every case. It forms one of the most important and
delicate exercises of judicial duty. It should be so performed as neither
to suffer the wealthy offenders to escape by the payment of a pecuniary
penalty, nor to render the privilege useless to the poor. In order to
make it a sure pledge for the appearance of the party, it must be de-
termined by considering:
1. The nature of the punishment to be inflicted on conviction.
2. The pecuniary circumstances of the party accused.
If the offence be punishable by hard labour, imprisonment or priva-
tion of civil rights, the desire to avoid punishment being greater, it
should be counteracted by an increase of penalty.
The wealth of the party must also be considered. The poor might
be oppressed by requiring an amount of security which would be no
pledge whatever for the appearance of the rich. For these reasons,
the law leaves to the discretion of the judge to determine the amount
of bail, guided by the above principles, and within the limits contained
in the following articles.
Art. 200. Where the punishment of the offence is a pecuniary penalty
only, the bail must be greater than the highest fine that can be imposed.
Årt. 201. When simple imprisonment forms a part of the punish-
ment, one dollar at least must be added to the amount of bail for every
day that the party may be sentenced, if not exceeding one year; if the
imprisonment may exceed one year, then any further addition must be
left to the discretion of the magistrate.
CODE OF PROCEDURE.
511
Art. 202. If hard labour form part of the punishment on conviction,
then two dollars at least is to be added to the amount of bail for every
day to which the party may be sentenced, not exceeding one year; if
the punishment may exceed one year, then any further increase must
be left to the discretion of the magistrate.
Art. 203. If a suspension or forfeiture of political or civil rights,
without imprisonment at hard labour, form a part of the punishment,
then the sum of five hundred dollars at least must be added to the
amount of the bail.
Art. 204. The five last preceding articles shall also govern the judges
who may bail prisoners on writs of habeas corpus.
Art. 205. No person shall be received as surety for the appearance
of the party accused, who is not a HOUSEHOLDER who has resided at
least one year in the state, and who does not own or possess property
either real or personal to double the amount of the sum for which he
is bound to prove by his oath, in all cases where the magistrate has any
doubt of his sufficiency.
Art. 206. A woman cannot be received at bail.
Art. 207. In all cases of crime, two sureties are required.
Art. 208. A single surety will be sufficient, if he possess and own
unincumbered real property to double the amount of the sum for which
he is bound.
Art. 209. When the person admitted to bail is a minor or a married
woman, the engagement shall, notwithstanding, be valid.
Art. 210. If, owing to mistake or misrepresentation, insufficient bail
has been taken, or if the sureties become afterwards insufficient, the
accused may be ordered to find sufficient sureties by any magistrate,
and on his refusal, may commit him for trial.
Art. 211. In all cases where a magistrate shall either commit for
trial or bail the accused, he must cause each of the witnesses who has
been examined, and has testified to any material fact or circumstance in
the case, to enter into a recognizance, without surety, in a sum fixed by
the magistrate, conditioned for his appearance at the next sitting of the
court, at which the accused is bound or committed to appear; and if a
witness shall refuse to sign such recognizance when required, he may
be committed to prison by the order of the magistrate, and shall be
confined until he shall be brought before the court to testify, or until
he shall sign the recognizance.
Art. 212. Those who may have become bail for any one, may at
any time discharge themselves by surrendering him to the custody of
the sheriff of the parish in which the court at which he was bound to
appear, shall sit.
Art. 213. The magistrate who took the recognizance of bail, is
bound, on request, to deliver a copy thereof to the bail, if he have not
yet transmitted the same in the manner hereinafter directed, or if he
have so transmitted it, then the clerk of the court having custody there-
of, must, on like request, deliver such copy, which shall be a sufficient
warrant for the bail to arrest the person for whom they have become
bound. In making which arrest the bail are authorized to do the same
acts and are bound by the same rules as are hereinbefore prescribed to
persons having warrants of arrest for examination on accusations for the
same offences.
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CODE OF PROCEDURE.
Art. 214. The sheriff to whom a surrender is legally made, as au-
thorized by the preceding articles, is bound to receive the person so
surrendered, and the bail must deliver to him with the prisoner the
certified copy of the recognizance of the bail, as his authority for de-
taining such prisoner, and he shall on the request of such bail, give
them a transcript of the recognizance with an acknowledgement that he
has received the person mentioned therein, in discharge of his bail.
Which transcript and acknowledgement being proved by the oath of
two witnesses to have been executed by such sheriff, shall be a suffi-
cient warrant for the officer or magistrate having custody of the recog-
nizance to cancel the same.
Art. 215. The magistrate who shall make any commitment or let
any person to bail, shall without any unnecessary delay, at the furthest
within three days, transmit to the clerk of the court, which has legal
cognizance of the offence charged, all the complaints, accusations, de-
positions, recognizances of bail, bonds for the appearance of witnesses,
and all other documents in his possession relative to the accusation.
Art. 216. If there be proof made before a magistrate of the com-
mission of any offence, and the party accused shall not be found on the
warrant of arrest for examination, it shall notwithstanding be the duty
of the magistrate to transmit to the court having cognizance of the
offence, all the depositions and other documents he has taken in the
manner directed by the last section, in order that the same may be laid
before the grand jury in the manner hereinafter directed. But the said
depositions and other documents need not in this case be transmitted to
the court until the first day on which it shall sit, after the said deposi
tions shall have been taken.
Art. 217. Further rules respecting bail are given in the chapter
regulating the practice on writs of habeas corpus.
TITLE II.
OF THE PROCEEDINGS SUBSEQUENT TO T E COMMITMENT OR BAIL.
CHAPTER I.
Of appearance and the manner of enforcing it against parties and
witnesses.
Art. 218. The names of all persons who have given bail or have be-
come bound by recognizance to appear in any court of criminal juris-
diction, shall be called in open court on the day they are respectively
bound to appear, and if they fail to appear before the adjournment of
the court, and no sufficient cause is shown according to the provisions
of the next article, their defaults shall be entered, and such entry shall
be evidence of the breach of their appearance, bonds or recognizances.
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513
Art. 219. If it be satisfactorily shown on the part of the sureties or
of the accused, that he is prevented from appearing by inevitable ne-
cessity, the court must direct an entry to be made on the back of the
appearance bond, that time is given for the accused to appear until such
day as the court, under a consideration of the circumstances of the case,
shall appoint.
Art. 220. Courts may also, on the motion of the public prosecutor,
order the sheriff to arrest and bring before them any person who has
been bound by recognizance or summoned to appear and give testimony,
and who has not attended at the time appointed; and when so arrested
the said witnesses may be also fined in any sum not exceeding fifty
dollars for their neglect, and must remain in custody until they give
their testimony and are discharged from further attendance, or until
they give such security as shall satisfy the court (either by their own
recognizance or with sureties) for their appearance to testify. Provided,
that if a witness shall show that he was prevented from appearing by
inevitable necessity, the court must remit the fine, and take the wit-
ness's own recognizance for his appearance.
Art. 221. Witnesses bound to appear, and persons let out on bail,
must not only attend on the day appointed in their respective obliga-
tions, but at such other times as the court shall direct, and the obliga-
tion continues, until they are discharged by the court.
Art. 222. If the public prosecutor discover that it will be necessary
to have any person examined before the grand jury, who has not been
bound by recognizance to appear, he may apply to a magistrate, who
shall summon such witness and cause him to enter into recognizance
for his appearance, to testify in the manner prescribed in the first chap-
ter of this book, or he may obtain a summons from the clerk of the
court under his signature and the seal of the court, commanding such
witness to appear at a day therein to be appointed, to give testimony
in such cases as shall be required of him, and courts and magistrates
may, whenever they think proper, cause witnesses to enter into recog-
nizance for their appearance to testify.
CHAPTER II.
Of the duty of public prosecutors, sheriffs and clerks, preparatory
to the meeting of the grand jury.
Art. 223. On the first day of each term of any court, at which a
grand jury is summoned, the sheriff of the parish in which the court
shall sit, shall make out and deliver to the judge of such court, two
copies of a calendar, on which shall be entered the names of all the per-
sons in his custody committed for trial for any offence, stating when
they were committed, by whom, and for what offence, and entering on
the said calendar the names of all such persons as having been com-
mitted for any offence were bailed, since the last term of the court, and
by what judge. And the clerk of the said court shall also make out
(and deliver to the judge) two copies of a calendar, on which he shall
enter the names of all the persons who appear by the returns of the magis-
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trates to have been either committed, or bailed, or who have been ac-
cused without having been arrested, for any offence, together with the
dates of the accusation, the name of the magistrate who committed or
bailed, and distinguishing whether each person was committed or bailed,
or could not be found; and the judge shall deliver to the grand jury, as
soon as they are sworn, one copy of each of the said calendars, together
with all the examinations, depositions and other documents returned by
the magistrate, and shall also send to them all such other returns as
shall be afterwards made by any magistrate during the session of the
grand jury. Provided that the said calendar before it is sent to the
grand jury, shall be submitted to the public prosecutor, who shall mark
thereon such cases of misdemeanor as he shall choose to prosecute by
information, and the papers and documents relative to such cases shall
not be sent to the grand jury, and it shall be the duty of the public pro-
secutor to file informations in all such cases before the end of the term.
CHAPTER III.
Of the grand jury, its organization and its duties.
Art. 224. The grand jury is a body of men, taken at stated periods,
from the mass of citizens, to perform a most important function in the
administration of justice. It is their duty to protect the innocent from
accusation, but to discover and bring the guilty to trial. They have not
political nor any other civil powers, and must confine their deliberations.
to inquiries whether there have been infractions of the penal laws of
the state, and who have been the offenders: no other presentments or
expressions of their opinions can be received in a court of justice, ex-
cept in cases where special duties may be imposed upon them by law.
Art. 225. The grand jury consists of twenty-three members, who
are selected in the manner prescribed by special laws for that purpose:
the consent of a majority of the whole number is necessary to make an
indictment; but a majority of those present may decide on any other
question arising in the course of their deliberations. No grand jury
can proceed to any business, unless thirteen members at least are
present.
Art. 226. The grand jurors, before they enter on the exercise of their
duties, shall each take the oath prescribed for that purpose by this Code.
Art. 227. A judge of the court in which the grand jury shall be con-
vened, shall immediately after they are sworn, give them such infor-
mation as he may deem proper as to the nature of their duties, and
draw their attention to such offences as are on the calendar, or as he
has reason to believe will be brought before them; confining his ob-
servations to the subjects connected with their duties as jurors, and
carefully avoiding all topics of political or party nature: he shall read
to them such parts of the Penal Code as relate to the several offences
on their calendar, together, with the whole of this chapter.
Art. 228. When the grand jury has received the address of the court,
they shall retire to the chamber appointed for their deliberations. Two
constables or deputies of the sheriff shall be appointed to be constantly
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515
in attendance on them, the one as door-keeper, the other as messenger
to carry the orders and citations which they may issue.
Art. 229. The first act of the jury, after having retired, shall be to
organize themselves, by electing two of their members, the one to pre-
side at their sittings, to be called the foreman of the grand jury, the
other to be their clerk: this choice shall be made by ballot, and the
members having the greatest number of votes for these places, shall
respectively be elected. If two persons shall have an equal number of
votes for the same place, this fact shall be reported to the court, and
the judge shall determine which shall be elected. As soon as an elec-
tion shall be made, a message shall be sent by one of the members of
the grand jury to the court, stating which members have been respec-
tively chosen.
Art. 230. The deliberations of the grand jury shall be secret: no one
shall be admitted while they are sitting but the public prosecutor, and
such persons as may be sent for or appear as witnesses, or may come
to make complaint or give information relative to the infraction of any
penal law. Every one announcing himself as complainant or inform-
ant against such infraction, must be admitted and heard at such time as
the grand jury will permit.
Art. 231. The public prosecutor shall have access to the grand jury
whenever he may have any information or advice on any point, of law
to give, or any complaint or evidence to lay before thein, or whenever
his attendance is required by the grand jury or any member thereof
who may desire his advice; but he must not be present at their delib-
erations or decisions.
Art. 232. The grand jury are to decide on all the cases on the two
calendars whether there is matter for accusation; this is not left to the
discretion of the public prosecutor: therefore, it shall be the duty of the
public prosecutor to prepare bills of indictment in all cases of crimes
appearing on the calendars, and in all such cases of misdemeanor as he
shall not choose to prosecute by information, and to send them to thẹ
grand jury, beginning with the cases of those who are in actual custody,
and among those, sending in first the cases of crimes highest in degree.
He can only depart from this order when material witnesses summoned
or under recognizance to appear, have not appeared, and he has rea-
son to expect their attendance. For the purpose of preparing these
indictments, copies of the examinations, depositions and other papers
returned by the magistrates, shall be sent to him by the clerk within.
three days after they are filed, and except in cases in which the returns
are made within three days of the meeting of the grand jury, it is the
duty of the public prosecutor to prepare all such bills of indictment by
the first day of the term.
Art. 233. If any of the grand jury know or have reason to believe
that an offence has been committed, within the jurisdiction of the court
in which they are sworn, he is bound by his oath to declare the same
to his fellow jurors, excepting such offences as can be presented on the
complaint of the party injured only, and the jury shall thereupon take
up the consideration thereof in their order.
Art. 234. Any individual having a knowledge of the commission of
any offence, may apply to the grand jury, who are bound to hear his
complaint and take his own declaration or oath, and that of such other
witnesses as he may point out to them.
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Art. 235. The grand jury may issue a summons ordering the attend-
ance of any witness, and if he fail to attend, may issue an order di-
recting the sheriff to arrest and bring him before them, and if he shall
refuse to be sworn or to testify, they may by a like order commit him
to prison, and he shall not be released until the grand jury are finally
discharged, unless he consent to be sworn and give testimony as or-
dered, and he shall moreover be liable to such punishment as in such
case is provided by the Code of Crimes and Punishments.
Art. 236. Every summons, order of arrest or other order of the
grand jury, shall issue in the name of the grand jury, (specifying the
parish or district for which they are sworn) and shall be signed by the
foreman and attested by the clerk.
Art. 237. When the foreman or clerk are disabled from sickness, or
for other cause have been discharged or excused from attendance by
the court, other members of the jury may be chosen in their places
during such disability.
Art. 238. When an indictment is found or the jury decide in the
manner hereinafter provided, that there is matter of accusation for any
offence against a person who is neither in custody nor on bail, or if on
bail, is bailed for an offence less in degree than that found, it shall be
the duty of the public prosecutor to apply for, and of the judge to grant
a warrant of arrest for the offence stated in the indictment or present-
ment, commanding the sheriff to arrest and keep in safe custody the
person therein named, who is charged with the commission of an of-
fence (naming it) by the grand jury.
Art. 239. The warrant shall be in the form hereinafter prescribed,
and shall be executed in the manner directed with respect to ordinary
warrants for arrest, except that no examination can take place before
the magistrate on any other point than that of the identity of the per-
son; if no objection of this nature be made, or if made, be not supported
by proof, the magistrate must either commit or bail the prisoner, ac-
cording to the rules established for that purpose on ordinary arrests.
Art. 240. In their deliberations, the grand jury are to proceed in the
following order: the calendars are to be read and they shall take up for
consideration, first: the causes of those who are in custody, beginning
with the greatest in degree. The indictment sent in by the public
prosecutor shall be then read, together with the examinations and other
documents returned by the magistrates. The witnesses shall then be
examined, and if any member requires the advice of the public prose-
cutor, he may be called, heard, and after he has retired, the foreman
shall again read the indictment and put the following questions to the
jury:
1. Whether they find that the offence stated in the indictment has
been committed.
2. Whether it was committed by the person accused in the indict-
ment.
Each of these questions shall be debated and decided separately, and
on each the jury may, with the assent of twelve members, make any
amendments or alterations in the indictment, either in the descrip-
tion and circumstances of the offence, according to their view of the
testimony and law, or in the name or description of the offender, if
another person than the accused in the indictment appears to have
committed the offence.
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517
If both the questions above stated are decided in the affirmative by
twelve jurors, the indictment shall then be signed by the foreman and
clerk, respectively by each, adding to his name the quality in which
he signs. When thus signed, the indictment is said to be found.
Art. 241. In cases where the public prosecutor has not sent an in-
dictment, the grand jury, after hearing the testimony, shall in like
manner decide, 1. Whether an offence has been committed, and what
that offence is; and, 2. Who is the offender. And if it result from the
decision of these questions, that twelve jurors are of opinion, that any
designated person has been guilty of an offence, the clerk shall certify
that there is matter for accusation against the person (naming him) for
such an offence (designating it), and shall deliver such certificate with a
minute of the evidence to the public prosecutor; who shall immediately
send an indictment to the grand jury, conformable to the fact and law,
which indictment, before it can have any force, must be found in the
manner above directed.
Art. 242. If the grand jury decide that they have not sufficient evi-
dence, either that the offence was committed, or that it was committed
by the person accused (whether this decision be made on an indictment
or under the last preceding clause, where no indictment has been pre-
sented), a certificate shall be sent to the court, stating that the grand
jury find no cause of accusation against such person (naming him) for
the offence of which he is charged (specifying it), which certificate
shall be signed by the foreman and attested by the clerk. Whereupon
such person, if in custody, shall be discharged, or if bailed, the bail
bond shall be cancelled; but such finding and discharge shall not pre-
vent another accusation for the same cause, if other testimony be pro-
duced; nor shall the party be discharged either from custody or from
his bail, if he be detained or bailed for any other cause than that which
has been examined by the grand jury: Provided also, that no discharge.
shall be ordered on any such certificate until the public prosecutor have
had notice thereof, and if he shall declare to the court that he has other
evidence against the accused, which in his opinion will justify a com-
mitment, the discharge shall be delayed twelve hours to enable him to
produce such testimony.
Art. 243. No record shall be kept of the manner in which any
member of the grand jury has voted on any question before them; nor
can any member be obliged or allowed to declare, even in a court of
justice, in what manner he or any other member of the grand jury
voted on any such question, or what opinions they expressed. But they
may be called on in any court of justice (in cases where evidence of
that nature is otherwise legal) to show that the testimony of a witness
examined before the grand jury was different from or consistent with
that given before such court.
Art. 244. Every indictment found by the grand jury shall be deliv-
ered by the clerk into the hands of the presiding judge in open court,
and if the person indicted be in custody or bailed for the offence of
which he is indicted, the judge shall deliver the indictment to the clerk
to be filed. But if the person indicted, be not in custody or not bailed
for the offence of which he was indicted, then the judge shall retain
such indictment until the party be arrested, or until the last day of the
term, if he be not arrested before, and shall then deliver it to the clerk
to be filed.
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Art. 245. The grand jury cannot be discharged during the term,
until they have decided on all the causes on the calendar, and on all
complaints before them, nor then without the order of the court; until
discharged, they must meet every day while they have any business
before them; but they may determine their own hours of meeting and
adjournment. When they have no business immediately before them,
but are waiting for witnesses, or on any other account, they may ad-
journ with leave of the court, for any term not exceeding three days.
When the term of the court to which the grand jury is summoned,
expires, eitheir by its limitation or the adjournment of the court, the
functions of the grand jury cease.
Art. 246. The grand jury has a right to ask the instruction and
opinion of the court on any point of law on which one-third of the
grand jurors present may be dissatisfied with the opinion of the pub-
lic prosecutor. In order to obtain such instruction the grand jury shall
come into court, and if the matter on which they desire to consult the
court, requires secrecy, the foreman shall so state to the judge, and
thereupon the judge shall cause all persons to leave the court until he
shall have heard the questions of the grand jury and given his opinion
and instruction thereon. After hearing which, the said jury shall
retire to thir own chamber to deliberate, but are not bound to decide in
conformity with such opinion or instruction.
Art. 247. Fines not exceeding for any one infraction thirty dollars,
may be imposed by the court on such grand jurors as fail in their at-
tendance at any time during the term. The grand jury may themselves,
in addition thereto, impose fines not exceeding ten dollars, to insure
punctuality in attending at the hour to which they may have adjourned.
Such fines to be collected in the same manner with other fines by the
sheriff, on the warrant of the foreman, and appropriated to such char-
itable institution, as the grand jury shall direct.
Art. 248. Grand jurors cannot, during the time of their attendance
as such, be arrested for any misdemeanor, nor on any civil suit, except
for a breach of the peace committed during the time they are thus pri-
vileged; nor for five days previous to the day for which they are sum-
moned, nor two days after their discharge and any one who shall
arrest or cause to be arrested, any person summoned as grand juror,
knowing him to be such, contrary to the provisions of this act, shall be
fined not less than thirty nor more than one hundred dollars; and the
grand juror so arrested shall be discharged from such arrest, and may
recover such damages as he may be entitled to by a civil suit.
Art. 249. The functions of a grand juror require to be exercised with
the most perfect freedom of opinion, of debate and action; therefore
it is his duty to keep secret whatever he himself or any other juror may
have said, or in what manner he or they may have voted, on any par-
ticular question or matter legally before them; and any person offend-
ing against the provisions of this article is guilty of a misdemeanor,
and shall be fined not less than thirty dollars nor more than one hun-
dred dollars.
Art. 250. No grand juror shall, directly, or indirectly, give informa-
tion to any one that an accusation or complaint is pending before the
grand jury, if the person accused has not been arrested on such accusa-
tion or complaint; and any one offending against this provision, is
guilty of a misdemeanor, and shall be fined not less than fifty nor more
CODE OF PROCEDURE.
519
than two hundred dollars, unless such information was given with in-
tent that the person accused should escape or avoid an arrest, in which
case, the juror giving such information shall also be deemed to be an
accessary to the offender, whose escape he intended to promote.
Art. 251. No grand juror shall be prosecuted or sued for any thing
he may say or any vote he may give, in the grand jury, relative to any
matter legally pending before the jury; provided, that nothing herein
contained shall prevent the prosecution and punishment of any grand
juror who shall be guilty of perjury in making any accusation or giving
any evidence to his fellow jurors; and in the case contemplated by this
proviso, the jurors are not bound by their oath nor by any of the pre-
ceding articles, to keep such perjury secret.
CHAPTER IV.
Of indictments and informations.
Art. 252. No OFFENCE can be prosecuted except by indictment or
information. This rule is modified in cases of certain fines and of
contempt, in the manner specially provided for.
Art. 253. An indictment is an act in writing made by a grand jury
legally convoked and sworn, declaring that a person therein named or
described, has done some act or has been guilty of some omission which
is by law declared to be an offence.
The indictment shall be in the following form:
"To the district court of the district (or the criminal court, giving
the style of the court as the case may be).
"The grand jurors for the (name the parish and district) on their
oath present, that A. B. on the
day of
in the year
in the parish of
did (here insert the act constituting the offence)
contrary to the laws of this state and the peace and dignity of the
same.
'E. F. Clerk."
C. D. Foreman.
Art. 254. No indictment shall be deemed deficient in form for any
variance from that contained in the preceding article, provided it can
be understood :
1. That the same was presented to some court having jurisdiction of
the offence stated in the indictment, although the title of the said court
may not be accurately set forth.
2. That it may be also understood from the said indictment that it
was found by a grand jury, convened for the parish or district in which
such court sat.
3. That the person accused is named, or if his name cannot be dis-
covered, that he be described as "a person refusing to discover his
name," which shall be sufficient description; but if on his arraignment
the accused, so described, shall assume some name, the name so as-
sumed shall be inserted in the indictment and taken as the true name.
No addition is necessary to the name, but if a false one be given,
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CODE OF PROCEDURE.
it can only be corrected in the manner stated under the head of arraign-
ment.
4. That the offence is alleged to have been committed at some place
which is within the jurisdiction of the court, except in cases where the
act, though done without the local jurisdiction of the court, is made
cognizable therein by law.
5. That the offence is alleged to have been committed at some time
which is prior to the time of finding the indictment, and where there
is a limitation of time for commencing the prosecution, within such
limitation.
6. That the act or omission charged, be so clearly and distinctly set
forth, as to enable a man of common understanding to know what is
intended.
7. That the indictment be signed by the foreman and the clerk of
the grand jury, and that the day on which it was presented to the court
be noted thereon.
8. That the name be set forth of the party injured, if a private
offence, but if the names are unknown to the grand jury, it may be so
stated.
9. That it concludes with the words "contrary to the laws of this
state, and the peace and dignity of the same," which are required by
the constitution.
Art. 255. The words used in an indictment, shall be taken and
construed in their usual acceptation in common language, except such
words and phrases as are particularly defined, which are to be taken in
the sense herein given to them.
Art. 256. It is not necessary to state in the indictment any particu-
lar place in the parish for the commission of the offence, or to aver
that it was done within the jurisdiction of the court, but it will be suffi-
cient to state that it was done within the parish, naming it, if such
parish be actually within the jurisdiction of the court.
Art. 257. Where the offence shall have been begun in one parish or
district, and become complete in another parish or district, the offen-
der may be tried in either of the districts or parishes, and the offence
may be stated to have been done in either of the said parishes or dis-
tricts, and proof that the offence was either begun or completed in the
parish or district where it is charged to have been done, shall be suffi-
cient to support the indictment.
Art. 258. Acconiplices and accessaries to offences begun in one
parish or district, and which become complete in another, may in
like manner be prosecuted in either of the said parishes or districts,
and the offender may also, as in case of principals, be stated in the
indictment to have been done in either, and proof thereof shall in
like manner support the indictment.
Art. 259. Where any act done out of the state is made an offence
by the Penal Code, the offender may be tried in the parish or district
in which he is apprehended.
Art. 260. If any one out of the state or in one parish or district
of the state, shall procure another person to commit an offence within
another parish of the state, he may be indicted and tried in the place
where the offence was committed, and that whether the person doing
the act, were an innocent or guilty agent.
CODE OF PROCEDURE.
521
1
Art. 261. It is not necessary to state the place in which an indict-
mènt is found in the margin of the indictment.
Art. 262. Every thing necessary to be stated must be truly stated
in the indictment: there are no legal fictions.
Art. 263. Every indictment, must, describe the offence with such
certainty, as to enable the accused to plead the judgment that may be
given on it, in bar of any prosecution for the same offence.
Art. 264. The precise time at which the offence was committed
need not be stated in the indictment, provided it be laid to have been
done before the time of presenting the indictment; but where the
time is material to the description of the offence, it must be alleged
with the same certainty that is described in the definition of the of
fence.
Art. 265. Rules and forms are given in a subsequent chapter for
drawing indictments and informations, in each particular offence;
where those forms or rules vary from those contained in this chapter,
the particular rules or forms are to prevail in that offence for which
they are intended.
Art. 266. When any circumstance is expressly made an aggrava-
tion of the offence, such circumstance must be set forth in the indict-
ment.
Art. 267. Where a repetition of the offence is intended to be relied
on as an aggravation of the punishment, the indictment must set forth
the preceding conviction, with the exceptions hereinafter mentioned
Art. 268. Where the intent is a material part in the description of
the offence, it must be stated in the indictment.
Art. 269. Every indictment for forgery, or for making, altering,
passing, or having in possession any instrument in writing, contrary to
any of the provisions of the chapter of the Code of Crimes and Punish-
ments relative to "Offences affecting the credit of written instruments,'
or for any other offences founded on written instruments, shall, with
the exception contained in the next article, contain an exact copy
of such instrument, expressing in words whatever is so expressed in
the instrument, and in figures, what in the instrument is expressed
in figures, but no ornamental engraving or writing contained in the
instrument, need be imitated in the copy.
、
Art. 270. The only case in which an indictment for either of the
offences mentioned in the last article, shall be good without containing
a copy of the instrument, is, where the instrument has been destroyed
by the act or procurement of the accused, in which case that fact may
be charged in the indictment, and must on the trial be proved; and
instead of the copy, the instrument must be described in the indict-
ment with so much certainty as to make it appear that it was one of
those which are made punishable by the system of Penal Law.
Art. 271. To every indictment for any of the offences above enu-
merated, except in the case mentioned in the last article, and in the
case of forgery or other offence relating to a public record, the fore-
man of the grand jury shall annex the instrument on which the indict-
ment is found, and shall mark the same, by writing on some part
thereof, the initials of his name, and the said instrument shall re-
main annexed to the said indictment, unless it shall be withdrawn by
leave of the court.
Art. 272. In the case above of an offence relating to a public record,
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CODE OF PROCEDURE.
the book in which it is kept shall be produced and marked by the
foreman of the grand jury; and shall again be brought into court, and
verified to be the same, without alteration, as it was produced to the
grand jury; and shall be exhibited to the defendant, previous to his
arraignment, when he is called on for his exceptions to the indict-
ment, in the manner prescribed in the next chapter.
Art. 273. In case of any defamation by writing or printing, painted
or inscribed on a building, or on an article, too bulky to be produced
in court, a copy or description may be inserted in the ACT OF ACCUSA-
TION, and proof of the fact be given on the trial, without producing
the painting or writing, or showing it to the accused.
Art. 274. In cases of libel, the indictment or information need not
contain the whole of the work, but only so much as is charged to be
libellous, but the whole must be annexed to the act of accusation.
Art. 275. In an indictment for any of the offences created by the
said chapter of offences affecting the credit of written instruments, it
shall not be necessary to charge that the instrument on which the in-
dictment is brought, would, if true, have had any of the effects enumer-
ated in the article containing the definition of the offence, or specifying
what the effect would be, or to name any particular person, whom it
was the intent of the accused to defraud; or to state otherwise than by
the copy thereof, what the said instrument purported to be, or in any
act of accusation whatever, to charge that the offence was committed
against the form of any particular statute.
CHAPTER V.
Of the proceedings between the indictment and the trial.
Art. 276. It shall be the duty of the clerk of the court, in which
any indictment or information for any offence is filed, within three
days after the same shall have been filed, to make a copy thereof,
and to deliver the same to the sheriff, to be served on the accused, or
on his bail; and no one shall be, without his assent, arraigned or
called on to answer any indictment or information, until three whole
days have elapsed after the copy shall have been served as aforesaid
exclusive of the days of service and arraignments.
Art. 277. Two days, at the least, after having received the copy of
the indictment, and one day at the least before his arraignment, the
accused shall be brought into court, and the instrument (if there be
any) annexed to the indictment shall be exhibited to him ; and he and
his counsel shall, in the presence of an officer of the court, have rea-
sonable time allowed them to compare the said instrument with the
copy set forth in the indictment, and to consider of any exception they
may think proper to make to the indictment.
Art. 278. After the exhibition of the instrument, as is above pro-
vided for, and after the expiration of the time allowed for the examina-
tion thereof, in cases where there is any instrument annexed, and
in cases where there is no instrument annexed, then at such time as
the court shall direct, at least two days after the service of the indict-
ment, and at least one day before the arraignment, the accused shall
CODE OF PROCEDURE.
523
be brought into court, and he must be told by the clerk that if he has
any exception to make to the indictment, for any want of substance or
form, or for any variance between the said indictment and the instru-
ment thereunto annexed, or for that he, the accused, is not indicted by
his true name, that he must then make such exception, or that no such
exception will hereafter be heard.
Art. 279. If the accused shall make no such exception, an entry
shall be made on the back of the indictment to that effect, and the
accused shall be remanded to prison if in custody, or to his bail, if he
be out on bail, until the time of his arraignment; and no motion for
quashing the indictment, or for an arrest of the judgment, shall be made
on account of any of the exceptions mentioned in the last article, ex-
cept as is hereafter provided in this chapter.
Art. 280. If the accused shall allege for exception, that he is not
indicted by his true name, he must state what such true name is; and
the prosecuting officer may then immediately amend the indictment.
by inserting such name, which the accused shall not be permitted at
any time afterwards to disavow.
Art. 281. If the accused shall make any exception to any want of
form in the indictment, or to any variance between the instrument of
writing and the copy in the indictment, the public prosecutor may, if
he think the said exceptions well taken, immediately amend such de-
fect of form or variance.
It shall be optional with the accused to make the exceptions men-
tioned in the preceding articles, verbally or in writing; if verbally
made, the judge shall take a note of them in writing, which shall be
read to the accused.
Art. 282. In case any amendments shall be made, either in virtue of
the two preceding sections, or by permission of the court, as is herein-
afterwards provided for, the court may allow such further time for the
arraignment and trial, as they may deem necessary to enable the ac-
cused to prepare for his defence.
Art. 283. Whether the accused except to any irregularity in the form
of the indictment, or to any variance between the indictment and the
copy of the instrument annexed to it, or not, the public prosecutor shall
be permitted to amend the same, at any time before the arraignment.
If the public prosecutor shall not choose to amend the indictment ac-
cording to any exception made by the accused, or if the court shall be
of opinion that such exception relates to matter of substance, and is not
amendable under the provisions of this chapter, a day shall be assigned
for the argument of such exceptions, previous to the arraignment; and
if the court shall allow such exception, and consider them as matter of
substance, the accused may be again indicted for the same offence, and
shall not be, on that account, discharged; but if the court shall al-
low the exceptions, after argument, but consider them as matter of
form only, the public prosecutor may immediately amend them.
Art. 284. If the grand jury which found the indictment was illegally
constituted, or not drawn or selected in the manner directed by law,
or not sworn; the accused may except thereto, in the manner directed
by the
article; but if such exception be allowed, it shall be con-
sidered as a matter of substance, and no amendment shall be allowed.
Art. 285. If the exception be that it does not appear by the indict-
ment, for what district the grand jurors were summoned, or in what
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court, or whether they were sworn or not, or whether they were
drawn and impanelled in the manner directed by law; it shall be con-
sidered as matter of form and amendable, unless the exception state, that
in point of fact the grand jury were not summoned from the proper
district, or were not sworn, or that they were impanelled in another
court, or that the forms prescribed by law were not pursued in the
drawing or impanelling their names, in which case, if either of the said
last mentioned exceptions of fact are allowed, it shall be considered
matter of substance, and shall not be amendable.
Art. 286. If the exception be that the copy of the instrument in
writing on which the prosecution is founded, is not contained in the
indictment, or that the original is not annexed in cases where, by law,
such copy ought to have been inserted, and such original annexed; or
that the time and place is not set forth at which the offence is said to
have been committed; or that the action or omission alleged, is not one
that is by law created an offence; or that where the intent is made a
material part of the offence, such intent is not charged; either of these
exceptions shall be considered as matter of substance, and shall not be
amendable.
Art, 287. All exceptions, other than those enumerated in the three
last preceding articles, and therein designated as exceptions to matter
of substance, shall be considered as exceptions to matter of form; and
shall be amendable in the manner hereinbefore provided for.
Art. 288. After a conviction, no judgment shall be arrested for any
allegation of a defect, either in substance or form, other than this; that
the act of accusation contains no charge of any thing amounting to an
offence, and if such objection be allowed, another indictment or in-
formation may immediately be filed, and the defendant shall not be
discharged, if the proof adduced on the trial be sufficient to have war-
ranted his arrest.
Art. 289. At the time when the accused is called to make his ex-
ception to the indictment, he shall be asked by the court whether he
has counsel; and if he shall allege that he is unable to procure counsel,
the court shall assign some licensed attorney to conduct his defence
under his direction. But the accused may in all cases have the advice
and assistance of any one whom he may have engaged, whether licensed
or not, to aid him in his defence. But such employment shall not de-
prive the prosecutor of the right of examining such person as a witness,
to state any facts which came to his knowledge, either prior to the pro-
secution, or which were not confided to him by the accused, after such
prosecution was commenced.
Art. 290. If the defendant make no exceptions to the act of accusa-
tion, or if, having made any, they are overruled, he must next be ar-
raigned: this is done by the clerk, who must read to him the act of
accusation in an audible voice, and the judge must interrogate him by
asking, "Are you guilty of the charge you have just heard read, or
not guilty?"
Art. 291. This form must not be dispensed with, either on a sugges-
tion that the defendant knows the contents of the act of accusation, or
out of delicacy to any defendant.
Art. 292. To this interrogatory of the arraignment, unless he plead
the special plea mentioned in the next article, the defendant can only
answer in the negative or the affirmative: a refusal to answer, or an
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525
evasive or explanatory answer, shall be taken and recorded as an an-
swer of not guilty.
Art. 293. If the defendant have before had judgment of acquittal, or
been convicted of the same offence, he must state that matter specially
in writing, and to this plea the public prosecutor may either demur if
it be deficient in substance, or reply either that there is no record of
any such conviction or acquittal as is pleaded, and on the trial the de-
fendant must produce the record and prove that he is the same person
mentioned therein.
Art. 294. If the defendant answer in the affirmative, it shall not be
recorded until the court shall have explained its consequence, and de-
sired him to reflect, and if he wishes it, to consult with his counsel: if
after this he persevere, the confession shall be recorded; provided there
is no reason to suppose the confession proceeds from insanity, for which
purpose, in all cases of CRIME when the party making the confession is
in custody, the officer in whose charge he was, shall be interrogated.
Art. 295. When the plea of not guilty is recorded, the public prose-
cutor shall, under the direction of the court, designate to the defendant
a day for the trial, which shall not, without the consent of the defend-
ant, be less than the third day after that on which the notice is given,
and this time may be prolonged at the instance of the defendant or of
the public prosecutor, under the limitations hereinafter contained.
Art. 296. On application to the clerk, process for summoning the
witnesses, as well on the part of the defendant as the public prosecutor,
shall be made out directed to the sheriff of any parish where the witness
may be found, who shall be bound to execute the same.
CHAPTER VI.
Of the mode of drawing and summoning the jury.
Art. 297. All offences whatever must be tried by jury.
Art. 298. All free white persons of full age and not exceeding sixty
years of age, who have resided one year in the parish in which they
are called to serve, and have paid taxes or been rated on the tax list
either for parish, city or state tax, or who have resided six months in
the parish and own real property therein, whether they have paid taxes
or not, are qualified jurors.
Art. 299. The names of all grand jurors and petit jurors, must be
drawn by lot before they are put on the panel.
Art. 300. For this purpose, in each of the parishes of this state in
which a court, having criminal jurisdiction, shall sit, the parish judge,
the sheriff, and two justices of the peace to be designated by the judge,
or a majority of them, shall within thirty days after the promulgation
of this code, form and sign a list containing the names of the persons
having the qualifications above enumerated, who are in their opinion
the best qualified, from their education and character, to serve on juries.
Such list shall contain a number of names equal at least to two thirds
of the number of voters at the last general election in such parish.
Art. 301. In forming such list, the persons aforesaid shall consult the
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assessment roll of taxes, and the list of votes taken at the general elec-
tion next preceding the time of making the list.
Art. 302. No name on the tax list or list of voters, shall be excluded
from the list so to be formed but by the unanimous consent of all the
persons hereby appointed to form it.
Art. 303. Any inhabitant of the parish, having the qualifications re-
quired, whose name has been omitted on such list for one year, may,
if he desire it, have it inserted in the next year's list, by applying
either to the sheriff or the parish judge.
Art. 304. When the list is so signed, the same shall be delivered
to the parish judge to be filed, and the sheriff shall immediately, in the
presence of the judge, of at least one justice and of as many other citi-
zens as choose to attend, proceed to write each name contained on such
list on a separate ballot, all as nearly as may be of the same size and
appearance.
Art. 305. The sheriff shall also provide two boxes, each having an
opening in the top that may be closed and locked with two different
locks, and shall deposit the said ballots in one of the boxes and lock
the openings of both, delivering one of the keys of each to the judge,
and keeping the other himself, and shall keep both boxes in his own
custody.
Art. 306. At some day, to be designated by the parish judge, be-
tween thirty and fifteen days before every session of any court of
criminal jurisdiction in the parish, the said judge shall cause notice to
be given to the sheriff and to two justices of the peace, to meet at such
place as he shall direct; and the judge shall, in their presence or that
of a majority of them, as often as a grand jury shall be required for
such court, draw at hazard from the box containing the ballots the names
of fifty persons, out of which the sheriff shall select ten and the judge
seven, and the justices of the peace each three names, which shall be
inserted on a list to form the panel for the grand jury, but if only one
justice attend, he shall select six names, and the ballots containing the
names so selected shall be put in the second box, and the residue of the
ballots returned to that from which they were taken.
Art. 307. Forty ballots shall in like manner be taken from the first
box, and the names contained on them shall be written on a list to
form the panel of petit jurors, for the trial of causes in such court at its
next session; and the ballots shall be put in the second box and both
boxes shall then be locked, the keys delivered as before, and the boxes
kept in the custody of the sheriff.
Art. 308. The two lists, or the one (in case no grand jury is drawn),
shall then be certified by the judge, the sheriff and at least one justice,
to contain the names of those who were drawn and selected to serve
as grand jurors or drawn to serve as petit jurors, and shall be delivered
by the sheriff to the clerk of the court, who shall file and record the
same.
Art. 309. Any court may by rule direct grand or petit jurors to be
summoned at other periods, where the business of the court renders the
attendance of one set for a whole session too oppressive.
Art. 310. Every year, within thirty days of the time the first list
was made out, a new list shall be in like manner made, and the ballots
containing the names shall be put into the box after destroying those
of the first year.
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527
Art. 311. So many of the names contained on the list of one year,
may be put on that of the succeeding year, as the persons intrusted with
the duty may deem proper.
Art. 312. As often as the first box shall be exhausted, the ballots
contained in the second shall be transferred to the first.
Art. 313. On receiving such lists, it shall be the duty of the clerk
to make out a writ in the form hereinafter in this code contained, with
a schedule annexed containing a true copy of the list of grand jurors,
commanding the sheriff to summon the persons named in such list to
attend as grand jurors at the next session of the court.
Art. 314. The clerk shall in like manner make out a writ for sum-
moning the petit jury.
Art. 315. The sheriff shall execute such writs in the manner they
command, by leaving a printed notice, containing the day and place of
attendance, with each juror, or at his place of abode, at least six days
before the return of the writ.
Art. 316. Jurors who do not appear when regularly summoned, or
who depart without leave of the court, or who violate any legal rule
for preserving order in the course of judicial proceedings, may be fined,
for each offence, not exceeding ten dollars, and the court may command
process to issue immediately for collecting it.
CHAPTER VII.
Of proceedings in court previous to the trial.
SECTION I.
Of postponing a trial.
Art. 317. At any time before the trial, the public prosecutor or
the defendant may apply to put it off to a future day, which shall be
granted whenever such circumstances shall appear to the court by affi-
davit, as show justice requires it. But the defendant, if in custody,
may be discharged, if he is not brought to trial in the second term after
his arrest; and if on bail, during the fourth term after such arrest: pro-
vided the delay have not taken place on his application, and that he
have been guilty of no contrivance to deprive the prosecutor of his
testimony.
Art. 318. The trial must also be postponed if it appear that a copy
of the panel of jurors has not been delivered according to the provisions
hereinafter contained.
Art. 319. On the day of the trial, the defendant shall be called, if he
be on bail, or brought into court, if in custody: the names of the jurors
shall then be called, and if not challenged, or if the challenge be over-
ruled, shall be sworn.
Art. 320. If the trial be for a misdemeanor, it may proceed if the
defendant appear by his counsel; if it be for a crime, the defendant
must be personally present; and if on bail, must then be surrendered
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CODE OF PROCEDURE.
into the custody of the sheriff, and remain in custody until discharged
by due course of law. But the court may at their discretion, when
sex, age, or state of health require it, permit the defendant to remain
in the custody of his bail during the recess of the court, if the cause
cannot be finished in one sitting, or while the jury are out, if any great
delay should take place in rendering the verdict.
SECTION II.
Of challenge.
Art. 321. A challenge is an objection made to the jurors who are
returned to try the cause, and is of two kinds.
1. To the panel.
2. To any individual juror.
Art. 322. The panel is the list of jurors, cither for the grand or trial
jury, made by the officers authorized for that purpose, when the names
are drawn according to law.
Art. 323. A copy of the panel of the trial jury must be delivered by
the sheriff to every defendant, if in custody, or to his bail, if he be de-
livered to bail, at least three whole days before the day of trial, for the
purpose of enabling him to make his challenge.
Art. 324. A challenge to the panel is an objection made to all trial.
jurors who are summoned; it can only be grounded on some material
departure from the forms prescribed by law for drawing and empan-
elling juries. But it is not a good cause of challenge to the panel, that
one or more persons not having the legal qualifications, have been put
on the jury list.
Art. 325. A challenge to the panel must be made in writing, stating
the cause of challenge, before any juror is sworn, and the officers,
whether judicial or ministerial, as well as any other persons, may be
examined to prove or disprove the irregularity alleged, if the public
prosecutor deny the fact. If he admit the fact, but deny the irregularity
complained of is material, he may demur to the challenge.
Art. 326. Challenges to individual jurors are of two kinds; peremp-
tory and for cause.
Art. 327. A peremptory challenge is an objection made to a juror
for which no reason need be given; it is enough for the defendant to
signify his desire that any particular juror who is about to be sworn,
shall not serve on the jury, and he shall be set aside; but this right can
be exercised only with respect to nine jurors.
Art. 328. Where there are several defendants, each one is entitled
to his challenge, both peremptory and for cause; but if they do not agree
to let one challenge for the whole, they must be separately tried.
Art. 329. A challenge for cause is an objection made to a particular
juror on the allegation of some circumstance that renders him either
incapable to serve as a juror in any case, or unfit to serve as such in
the one about to be tried. Of the first kind are:
1. Conviction of any offence which by the Code of Crimes and Pun-
ishments incurs a forfeiture of the right of serving as a juror.
2. A want of qualifications designated by law as necessary for a
juryman.
CODE OF PROCEDURE.
529
3. Insanity, or such defect in the organs of hearing, seeing or
speaking, or other bodily or mental defect or disease as renders him
incapable of performing the duties of a juror.
All these are called principal causes of challenge. When a particu
lar exemption from service on juries is granted by law, it is not a
cause of challenge to such person, but a right of which he may avail
himself or not.
Art. 330. The causes of challenge of the second kind are either in
chief, by the allegation of a fact, which if proved is a disqualification
by law, or to the favour, by the allegation of some circumstance which
is supposed to evince the want of that perfect impartiality necessary
in a juror. The causes of challenge in chief are :
1. Relationship within the ninth degree to the person alleged to be
injured or attempted to be injured by the offence charged, or to the
person on whose complaint the prosecution was instituted, or to the
defendant.
2. Standing in the relation of husband, master or servant, landlord
or tenant, tutor or curator, sponsor for the child of one of the said par-
ties, in his employment on wages, or plaintiff or defendant against him
any civil suit, or having complained against him, or being accused
by him in any criminal prosecution.
in
3. Having served on the grand jury which found the indictment
against the defendant on which he is about to be tried.
4. Having served on a petit jury which has convicted or acquitted
another person charged with having committed the same offence now
about to be tried.
5. Having been one of a jury which was sworn in the same cause
against the same defendant, and which jury either gave a verdict which
was set aside, or was discharged after hearing evidence for any other
cause, except in the case hereinafter provided.
6. Having served as a juror in a civil suit brought against the defen-
dant for the same act.
7. Having formed such an opinion of the guilt or innocence of the
defendant, as in the opinion of the juror himself, renders him not
an impartial judge.
Art. 331. If either of the facts stated as causes of challenge in the
two last preceding articles, be alleged and proved to the satisfaction of
the court, the juror challenged for such cause shall not be sworn.
Art. 332. The juror challenged may be sworn, and other evidence
may be produced, to show the truth of the cause of challenge, and in
the case of the seventh cause above enumerated for challenges in chief,
if the juror have formed an opinion bút does not think it disqualifies
him, this may be made a case of challenge to the juror in the manner
provided by the next article. But no juror shall be obliged to answer,
whether he has been convicted or not of a certain crime that would dis-
qualify him.
Art. 333. A juror must come to the performance of his high duty
with a mind perfectly unbiassed; therefore, if no challenge in chief
be made, or being made, is not proved, the defendant, if he can prove
any other circumstance that shows either prejudice against him, or
favour to his accuser, may make it a cause of challenge to the favour.
Art. 334. This challenge, like those in chief, is made verbally,
and if it be to the first juror who appears, it must be tried by three
3 R
530
CODE OF Procedure.
persons called triers, to be named by the court: if one juror has been
sworn, he, together with two persons named, are the triers; if two
are sworn, the court must name another trier, and when three jurors
are sworn, they are the triers of all subsequent challenges to the jurors.
Art. 335. The triers shall be sworn to decide whether the juror
challenged is perfectly unbiassed, and free from all prejudice against
the defendant, and as a majority of the said triers decide, the juror
shall be sworn or the challenge allowed.
Art. 336. A juror against whom a challenge in chief or the favour
has been overruled, may be challenged peremptorily.
Art. 337. The public prosecutor may make challenges to the panel
or for cause to individual jurors, for the same causes, in which they
are allowed to the defendant. He has also a right of peremptory chal-
lenge to three jurors.
Art. 338. All challenges to individual jurors must be made when
they are called to be sworn, but before they are sworn.
CHAPTER VIII.
Of the trial.
Art. 339. The names of all the jurors on the petit jury panel, shall
be called, and those who do not appear shall be fined not exceeding
ten dollars, which fine on the subsequent appearance of the juror and
on his offering a sufficient excuse, to be approved at the discretion
of the court, may be remitted.
Art. 340. Either the public prosecutor or the defendant may re-
quire, before proceeding to trial, that an attachment issue against the
jurors who have made default, on which they shall be arrested and
brought forthwith into court.
Art. 341. After waiting such time as the court shall deem reason-
able for the return of the attachment, the clerk shall in open court put
the names of all the jurors on the panel, each written on a separate
ballot, folded as near as may be of the same size and shape, into a
ballot box, from which they shall be drawn successively, and, if not
challenged, sworn in the order in which they are drawn, until the
number of twelve shall be complete.
Art. 342. The court has power to excuse any juror from attendance,
for reasonable cause, and whenever any number exceeding five have
been so excused, or when a sufficient number cannot be brought up on
attachment for the trial of a cause, the court may direct the names of
a sufficient number of other jurors to be drawn from the box, and or-
der them to be summoned to attend immediately, and their names shall
be put into the court box and drawn for the trials as is before directed.
Art. 343. Any less number than twelve that may be agreed on
between the public prosecutor and the defendant, may try a misde-
meanor, but a crime shall not be tried by less than a full jury, drawn
by lot in the manner above directed.
Art. 344. The trial shall proceed in the following order:
CODE OF PROCEDURE.
531
1. The clerk shall read the indictment or information to the jury,
and inform them what answer has been recorded.
2. The public prosecutor shall open the case by reading from the
code the description of the offence, and stating summarily, by what
evidence he expects to prove the guilt of the defendant.
2. The public prosecutor shall offer the evidence in support of the
prosecution.
4. The defendant, or his counsel, shall open his defence, state in
what facts or law he intends to rely, and whether he thinks the evi-
dence for the prosecution insufficient or inapplicable.
5. The defendant shall produce his testimony.
6. The public prosecutor may then introduce testimony to rebut
any that has been introduced by the defendant, or if he do not, he
may offer his concluding argument.
7. The defendant closes the argument; previous to which he may
introduce testimony to repel that last offered by the prosecutor.
Art. 346. The public prosecutor may at any time during the term
request the court to give a direction to find a verdict for the defendant,
if he finds that the prosecution cannot be supported, and if the court.
give such direction, the jury are bound to acquit the defendant, and if
they refuse, a new trial shall be immediately granted, or, at the option
of the defendant, entry made that the public prosecutor will no longer
prosecute for the offence.
Art. 347. The court cannot, for any defect or supposed deficiency
of testimony, prevent the jury from giving a verdict.
Art. 348. If a juror on any trial for a crime should be taken with
some malady, that prevents his performing his duty, the court may
order him to be discharged; and in that case a new jury must be
sworn, and the trial must begin again the same jurors may, if drawn,
serve on the new jury, but may be challenged although they were not
before.
Art. 349. In misdemeanor, a new juror may be added, or the trial
may proceed with those who remain by the consent of the prosecutor
and the defendant.
Art. 350. The court has a discretionary power of adjourning the
trial' from day to day, if from the length of the proceedings it cannot
be conveniently finished in one or more sittings, or if any unforeseen
circumstance should make it necessary for the attainment of justice
to do so.
Art. 351. In the case provided for by the last preceding article,
the jury must, unless by consent, be kept together during the recess
of the court, at the public expense, under the charge of an officer,
who shall be sworn not to permit any one to speak with them touch-
ing any matter relative to that trial. This consent cannot be given in
cases of crimes punishable with imprisonment for life.
Art. 352. The court may also discharge the jury: 1st. Whenever it
appears to them by the examination of a physician that a witness on
either side, who has not been examined or discharged, and who is prov-
ed to be a material one, has been taken sick since the commencement of
the trial, and cannot be examined in court without danger to his life,
and there is no probability of his speedy recovery. 2d. Where the de-
fendant himself is so taken sick. 3d. Where a material witness on the
part of the prosecution has been concealed, or induced to abscond or
•
code of procedure.
532
conceal himself by the defendant, or any one employed by him; or
where such witness for the defendant is concealed, or has been induced
to conceal himself, or abscond, by the public prosecutor, the complain-
ant, or the person supposed to be injured by the offence, or by any one
employed by either of them.
Art. 353. The judge shall decide all questions of law arising in the
course of the trial, and shall keep notes of all the testimony offered on
either side.
Art. 354. When the pleadings are finished, the judge shall give his
charge to the jury, in which he shall state to them all such matters of
law as he shall think necessary for their information in giving their
verdict. But he shall not recapitulate the testimony unless requested
so to do by one or more of the jurors, if there should be any difference
of opinion between them as to any particular part of the testimony,
and then he shall confine his information to the part on which informa-
tion is required, it being the intent of this article that the jury shall
decide all questions of fact, in which is included the credit due to the
witnesses who have been sworn, unbiassed by the opinion of the court.
Art. 355. After hearing the charge, the jury may either decide in
court or retire for consultation. If they cannot immediately agree, an
officer must be sworn in the manner set forth in the subsequent chapter,
to take charge of them; and they must then retire to a chamber pre-
pared for them.
Art. 356. Before leaving the court, the jury must appoint one of
their number to be foreman; whose duty it is to preside in their de-
bates, to deliver the verdict, or ask any information from the court that
may be required by the jury. If a majority do not agree in the ap-
pointment of a foreman, he shall be named by the court.
Art. 357. Whenever in the opinion of the court it may be deemed
proper and convenient that the jury should have a view of the place in
which the offence is said to have been committed or of any other place
in which any other transaction material to the inquiry on the trial took
place, an order shall be made to that effect, and the jury shall be con-
ducted in a body under the care of the sheriff, to the place, which shall
be shown to them by a person appointed by the court, and it shall be
the duty of the sheriff to suffer no other person to speak to the jury,
and they shall when the view is finished, be immediately conducted into
court.
CHAPTER IX.
Of the conduct of the jury after receiving the charge.
Art. 358. When the jury have retired, they must proceed to deliber-
ate of their verdict. If there be any disagreement between them as to
any part of the testimony, or if any juror wish to be informed of any
point of law arising in the cause, the officer having charge of them
shall bring them into court; where the information asked shall be given
in the presence of, or after notice to, the defendant or his counsel, and
to the public prosecutor.
CODE OF PROCEDURE.
533
Art. 359. After having received the information required, the jury
may again return, and shall not be discharged until they are all agreed
on their verdict, unless it shall appear to the court that there is no pro-
bability that they will agree, and that the health of one or more of the
jurors will be endangered by the confinement.
Art. 360. The jury to be kept during the time of their retirement
without any other sustenance than bread and water, except during the
adjournments from day to day, mentioned in the last chapter; and they
are to speak to no one, except in case of such adjournment, but the
officer who attends them, and with him they are to have no other com-
munication than necessity requires.
Art. 361. If one of the jurors, after they have retired, should be
taken so sick as to prevent the continuance of his duty, the jury must
be discharged, unless in cases of misdemeanor it is agreed between the
public prosecutor and the defendant, that the remaining jurors shall
decide the cause. This agreement cannot be made in case of crime.
Art. 362. In all cases where power is given to the court to discharge
a jury, it operates no discharge of the defendant, but a new jury must
be sworn to try the cause.
Art. 363. The court may adjourn while the jury are deliberating on
their verdict, and if the jury should agree before the next meeting of
the court, if the cause in which they are empanelled be a misdemeanor,
they may write and sign their verdict, which must be left with the fore-
man, sealed, and the jurors are then at liberty to disperse, but must be
all present in court at its opening; when the foreman must deliver it
to the court, which shall be openly read, and if agreed to by all the
jurors, shall be recorded.
Art. 364. A sealed verdict cannot be given in cases of crime even
by consent.
Art. 365. The jury shall take with them all papers that have been
received as evidence in the cause, or copies of such parts of public re-
cords, books or other documents as cannot without inconvenience be
taken from the persons having charge of them. They may also take
with them notes of the testimony which one or more of them have
taken, but none made by any other person.
Art. 366. If a juror have any personal knowledge respecting any
fact in controversy in the cause, it is his duty to make the declaration
in open court during the trial. If during the retirement any juror de-
clare any fact that could be evidence in the cause, to his fellows, as of
his own knowledge, it is the duty of the other members to return with
him into court; and in both cases, the juror making the statement
must be sworn as a witness, and examined in the presence of the parties.
Art. 367. A mere declaration of the credit or want of credit any
juror gives to a witness, does not come within the last preceding article.
Art. 368. The court may punish by fine not exceeding twenty dol-
lars, any such breach of the duties prescribed to grand or petit jurors
as are imposed upon them by law, other than such as are specially cre-
ated offences, which must be prosecuted by information.
Art. 369. No juror shall be punished for any opinion or vote he may
have given in deliberating on or in giving his verdict.
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CODE OF Procedure.
CHAPTER X.
Of the verdict.
Art. 370. When the jury have agreed in their verdict, they shall be
conducted by the officer having charge of them into court; when
their names shall be called, and if all do not appear, the rest shall be
discharged without giving a verdict.
Art. 371. If the whole jury appear, the defendant shall be called if
he be out on bail, or brought into court if he be in custody.
Art. 372. In case of misdemeanor, the defendant may answer when
called by his attorney or counsel, both at the trial and when the verdict is
brought in, and the bail is answerable in the amount of the recognizance
if the defendant do not surrender himself to receive judgment. When
imprisonment forms a part of the judgment, it may at any time after-
wards be inflicted if the defendant be found, notwithstanding the pay-
ment of the penalty of the recognizance.
Art. 373. When the jury have returned into court, they shall be
asked whether they have agreed on their verdict, and if the foreman
answer in the affirmative, they shall, on being required, give the same
verbally, or if it be written, the foreman shall read the same.
Art. 374. The form must be either "guilty" or "not guilty," which
is a general verdict and imports an acquittal or conviction on all the facts
charged; or in cases where the jurors are in doubt whether the facts
that have been proved, amount to any offence on which they can decide
under the charge in the act of accusation, they may find a special
verdict.
Art. 375. A special verdict is a statement of the facts which have
been proved to the satisfaction of the jury, with a conclusion that, being
uncertain whether such facts are sufficient to establish in law the guilt
of the defendant, they submit that point to the decision of the court.
Art. 376. A special verdict shall be argued at such time and in such
manner as shall be directed by the rules of court, but the counsel for
the defendant shall conclude the argument.
Art. 377. If, after argument, the court shall be of opinion that the
facts found prove the defendant is guilty of the offence charged in the
act of accusation, or of any other of which he could be convicted under
that act of accusation, according to the rules hereinafter established,
they shall proceed to pronounce judgment accordingly.
Art. 378. If the facts found show, that the act does not amount to
any such offence as the defendant could have been convicted on, under
that act of accusation, they shall pronounce a judgment of acquittal.
Art. 379. In either of the cases mentioned in the two last preced-
ing articles, the judgment shall be a bar to any future prosecution for
the same offence.
Art. 380. If the jury do not pronounce affirmatively or negatively
on facts necessary to establish the guilt or the innocence of the defend-
ant, the court shall direct a new trial.
Art. 381. On an act of accusation for any offence coming within the
CODE OF PROCEDURE.
535
general description of homicide, the jury may find the defendant
guilty of homicide in any degree lower than that charged in the indict-
ment; the degrees are measured by the order in which the offences
are described in the code, those first described being lowest in degree.
Art. 382. On acts of accusation for battery, aggravated by any of
the circumstances which enhance the guilt of the offender, the jury
may find him guilty only of simple assault and battery; if several
circumstances of aggravation are charged in the act of accusation, they
may find him guilty of one or more; but no one can be found guilty
of an act of aggravation not charged.
Art. 383. If the charge made by the act of accusation be of theft,
aggravated by any of the circumstances which would enhance the
guilt of the offence, whether such circumstances as give it another
denomination (such as robbery or stealing from the person) or not,
the defendant may be found guilty of simple theft, or of theft aggra-
vated by any one or more of the circumstances charged.
Art. 384. If the charge be simple theft, a verdict may be given for
any fraudulent appropriation of property that by law is created an
offence.
Art. 385. In the cases coming within the purview of the three last
preceding articles, the acquittal or conviction is a bar to any other
prosecution for the same act, although the subsequent accusation should
add a charge of other intent or circumstance.
Art. 386. If a former conviction be changed either in the act of
accusation or by notice, it may negative that fact, or affirm it specially,
or by a general verdict.
Art. 387. In every other case not herein specially provided for,
the defendant may be found guilty of any offence the commission of
which is necessarily included in that of which he is accused, in the act
of accusation.
Art. 3SS. If the defence in any accusation of crime be insanity in
the defendant, and the jury acquit him on that ground, they must add
that finding to their verdict, and thereupon the court is authorized to
make such order for the confinement of the defendant in a hospital
or otherwise, or for the delivery of him to his relations, as humanity
and public safety may require.
Art. 389. If on the trial for any offence it should appear by the
testimony that an offence of a higher nature has been committed than
the one charged as arising from the same circumstances, the court
must direct the jury to be discharged, and a new indictment sent to
the grand jury for the higher offence.
Art. 390. They may also direct the jury to be discharged where
there is any such defect in the indictment or other proceedings, as
will prevent a trial on the merits, and may, in such case, order the
defendant to be committed for any offence that the testimony may
have shown he had committed.
Art. 391. If a verdict of acquittal shall be given on any act of
accusation, so defective that no judgment could have been given
against the defendant if he had been convicted, he shall not be dis-
charged, but may again be indicted and brought to trial for the same
offence.
Art. 392. When the jury shall find the defendant not guilty on an
536
CODE OF PROCEDURE.
accusation, for any offence founded on a written instrument, under
the chapter of the Penal Code entitled "Of offences affecting the cre-
dit of written contracts," the court shall inquire, and the jury must
declare whether they find such instrument to be false or forged, or
made contrary to any of the provisions of that chapter; and if they
find that the instrument is not false nor forged, nor made contrary to
any of those provisions, the instrument shall be delivered to the per-
son from whose possession it was taken.
Art. 393. If on such accusation the defendant is convicted, or if the
jury, under the direction of the last preceding article, have found that
the instrument was false, forged, or made in contravention of any
provision in the chapter above referred to, the instrument shall re-
main attached to the indictment, until the court shall make other
order, which they may do in case any civil suit be commenced which
may render the production thereof necessary to any party in such
suit; but on such terms and on such security, as the court may
deem proper to prevent fraud.
Art. 394. When there is a verdict of acquittal, the court cannot
require the jury to reconsider it; but when there is a verdict of con-
viction, in which it appears to the court that the jury have mistaken
the law, they may explain the reason why they think so, and direct
the jury to go out and reconsider the verdict; but if after such recon-
sideration they return with the same verdict, it must be entered.
Art. 395. In like manner, if the jury bring in a verdict that is nei-
ther an acquittal nor a conviction, nor a special verdict, the court may
direct the jury to reconsider the verdict, and it shall not be recorded
until it is brought in in some form from which it can be clearly under-
stood what is the intent of the jury, whether to acquit, to convict, or
to state facts and leave the judgment to the court.
Art. 396. If the jury persevere in finding an informal verdiet, from
which, however, it can be clearly understood that their intent is to
acquit, it shall be entered in the terms in which they found it, and the
court shall give judgment of acquittal; but no judgment shall be given
against a defendant unless the jury expressly find him guilty, or judg-
ment be given against him on a special verdict.
Art. 397. If the court or either of the parties think that all the
jurors have not agreed to the verdict that may have been given by the
foreman, they shall severally be asked whether they agree, and if any
one answers in the negative, the whole jury shall be sent out for fur-
ther deliberation.
Art. 398. When the verdict is given, and is such as the court
must receive, the clerk records it on the minutes of the court, which
he must do immediately, without attending to any other business;
and when it is recorded in full, he must read it to the jury, and de-
mand whether they all agree: if any juror disagree, the record must
be cancelled, and the jury again sent out; if no objection be made, the
jury must be discharged.
code of procedure.
537
CHAPTER XI.
Of the proceedings after verdict to judgment.
Art. 399. If the defendant be acquitted, and is not detained for any
other legal cause, he is entitled to his discharge as soon as the verdict
is recorded, except in the cases hereinbefore provided, where the
court may order a detention and a new act of accusation; unless the
public prosecutor shall declare that he intends to move for a new trial
for some of the legal causes hereinafter set forth, or shall request that he
may be detained on an allegation that he has other charges to exhibit
against him but such motion must be made, or such charges must be
exhibited in a legal form, within twelve hours after the acquittal, or
the defendant must be discharged, if in custody, and his bail is exon-
erated if he be delivered to bail.
Art. 400. No prisoner acquitted by a verdict or discharged for
want of prosecution, shall be detained for any costs or fees of office,
or any debts incurred for his subsistence while in custody.
Art. 401. If the defendant be convicted, he must be remanded, if
in custody, to the prison, until judgment shall be pronounced.
CHAPTER XII.
Of new trials and motions in arrest of judgment.
SECTION I.
Of new trials.
Art. 402. A new trial is a rehearing of the cause before another
jury, after a verdict has been given on the same act of accusation.
Art. 403. The allowance of a motion for a new trial places the
parties precisely in the state in which they were immediately before
the first trial. All the testimony must be heard again; and the first
verdict cannot be made use of either as evidence or in argument.
Art. 404. Courts have power to grant new trials in the cases enu-
merated in this section.
Art. 405. After acquittal, either by general verdict or when a spe-
cial verdict is found, new trials may be granted on the motion of the
public prosecutor in the following cases, and no other:
1. When the defendant, or any one for his benefit, has bribed a
juror, or suborned or bribed a witness, or has given any forged paper
in evidence, on the first trial, which might, in the opinion of the
court, have changed the verdict.
3 S
538
CODE OF PROCEDURE.
2. When the defendant, or any one for his benefit, has either by
force, threats or persuasion, prevented any material witness from ap-
pearing against him on the first trial; or has destroyed or secreted
any written document, material to the prosecution, and which might
otherwise have been produced.
3. When evidence in favour of the accused shall have been given
to the jury out of court, without the order of the court and the con-
sent of the public prosecutor.
4. When by the procurement of the defendant, or of any one for his
benefit, the jury which tried the cause was illegally impannelled, but
no illegality in the panel unless caused by such procurement, shall be
a good cause for a new trial after an acquittal.
Art. 406. No irregularity committed by the jury shall be a good
cause for setting aside a verdict of acquittal.
Art. 407. New trials, after a verdict of conviction, may be granted
on the application of the defendant, in the following cases and no
other :
1. When the defendant, being in custody, was not brought into
court at the trial or at the time the verdict was delivered.
2. When he has been tried without being called on to make his
exceptions to the act of accusation and other proceedings in the man-
ner directed in the fifth chapter of this title.
3. When any one has bribed a juror to give a verdict against the
defendant ; or has forged an instrument in writing which has been
produced in evidence against him; or when any of his material wit-
nesses have by force, threats or persuasion, been prevented from at-
tending on the trial; or when a written instrument, material to his
defence, has been intentionally destroyed or secreted for the purpose
of procuring his conviction-provided in this last case, that the instru-
ment was legal testimony, and that the defendant had reason to expect
its production on the trial.
4. When material evidence has been discovered since the trial
which may be procured on a new trial, which could not by due dili-
gence have been discovered before; and which, in the opinion of the
court, might have changed the verdict had it been produced.
5. When the jury has received any other evidence, out of court,
than that resulting from a view as herein before directed, without leave
of the court and the consent of the defendant; when they have deci-
ded their verdict by chance; or have separated after they had retired
to consult of their verdict, and before they have given it in, except in
cases of sealed verdicts, as is herein before provided.
6. When the verdict is, in the opinion of the court, contrary to
law or evidence: but no more than two new trials shall be given for
this cause alone.
7. When the defendant has been tried without the assistance of
counsel, when he has prayed that counsel should be assigned him.
8. When the court has misdirected the jury on any point of law, or
given them any direction how to find any point of fact, to the preju-
dice of the defendant.
Art. 408. No new trial shall be granted on the allegation of the
perjury of a witness, or the production of forged papers, unless the
fact of perjury or forgery appear by the oath of two credible witnesses,
or of one witness and strong circumstantial proof; and unless it shall
CODE OF PROCEDURE.
539
appear, that the party making the application was surprized by the
production of such false evidence, and could not, by reasonable dili-
gence, have been apprized of the intention to produce it; or that the
evidence to prove the forgery or perjury came to his knowledge after
the trial, and could not, by reasonable diligence, have been discovered
before.
Art. 409. In all cases of applications for a new trial, such of the
facts on which it is founded, as may reasonably be supposed to be
within the knowledge of the party making it, must be declared by his
affidavit, supported by such other testimony, where the case admits of
it, as may be satisfactory to the court.
Art. 410. Applications for a new trial, on the part of the defend-
ant, must be made within three days after the entry of the verdict on
the part of the prosecution; it must be made in the manner and
within the time specified by the first article of the eleventh chapter of
this title. All applications for new trials must be in writing.
SECTION II.
Of motions in arrest of judgment.
Art. 411. A motion in arrest of judgment is a request made to the
court, after conviction, praying that no judgment be rendered on the
verdict. It must be founded on a defect apparent on the act of accu-
sation.
Art. 412. No judgment can be arrested for a defect of form.
Art. 413. The only matter of substance for which a judgment can
be arrested is this, that the act of accusation contains no charge of any
fact, or of any fact coupled with an intent, that is by law declared to
be an offence. The court may, on its own view of this defect, arrest
the judgment without motion.
Art. 414. The effect of allowing a motion in arrest of judgment is
to place the defendant in the same state, with respect to the prosecu-
tion, in which he was before the indictment was found, or the infor-
mation was filed. If from the testimony, on the trial, there is sufficient
reason to believe him guilty of the offence for which he was first
arrested, a new indictment shall be sent to the grand jury; or a new
information shall be filed, as the case may require; and the defend-
ant shall remain in custody, or be delivered to bail. If the evidence
show him guilty of another offence, he shall be committed or bailed
on such charge and in neither case shall the verdict bar a new pro-
secution. If no evidence appear sufficient to charge him with any
offence, he shall be discharged, and the arrest of judgment shall oper-
ate as an acquittal of the charge on which he was arrested.
:
Art. 415. Motions in arrest of judgment must be made within
three days after the entry of the verdict.
540
CODE OF PROCEDURE.
CHAPTER XIII.
Of the judgment and its incidents.
SECTION I.
Of the judgment.
Art. 416. If within three days after a verdict has been entered no
motion in arrest of judgment, or for a new trial, has been made, or
having been made has been over-ruled, the court shall proceed to ren-
der judgment.
Art. 417. For this purpose the defendant shall be brought into
court, if in custody; or surrendered, if delivered on bail.
Art. 418. In cases of misdemeanor where the defendant has been
bailed, and has appeared by attorney or in person at the trial, and
when the verdict was delivered; but does not appear to receive
judgment, sentence may be pronounced in his absence. If the sen-
tence be fine only, it shall be recovered from the bail, but only to the
amount of the recognizance and after DISCUSSION of the property of
the defendant.
Art. 419. If under the circumstances set forth in the last preceding
article, the judgment be fine and imprisonment, or imprisonment
alone, and the defendant does not surrender himself before the return
of the process of execution, the bail is liable to the amount of the
recognizance, and the sentence of imprisonment may afterwards be
executed whenever the defendant is found.
Art. 420. The defendant being at the bar, the verdict shall be read
to him, and he shall be asked whether he have any legal cause to show
why judgment should not be pronounced against him.
Art. 421. It will be good cause to show, in answer to this address :
1. That the defendant has received a pardon from the constitutional
authority. On the production of which, legally authenticated, the
defendant shall be discharged, if the pardon be unconditional, and if
there be no other legal cause for his detention but that on which the
pardon operates; but if the pardon be conditional, and the fulfilment
of any of its conditions requires his further detention, he shall be re-
committed.
2. It may be alleged in behalf of the defendant, that he is INSANE;
and, if the application be supported by such proofs as satisfies the court
of the fact, judgment shall not be pronounced, unless a jury, to be
impannelled for that purpose in the manner herein after directed,
shall decide that he is not insane.
3. The defendant may state, that he has good cause to offer either
in arrest of judgment or for a new trial, and that by some unavoid-
able accident, or cause, over which he had no control, he was pre-
vented from submitting the motion in the time prescribed; and if
such accident, or cause, be shown to the satisfaction of the court, the
CODE OF PROCEDURE.
541
judgment shall be deferred; and they shall proceed, as in other cases,
to decide on the motion in arrest of judgment, or for a new trial.
4. He may allege, that he is not the person against whom the ver-
dict was pronounced, and pray that his identity may be inquired of
by a jury; and if he shall make affidavit of the truth of such allega-
tion, a jury shall be impannelled to try and determine on the identity
of the person, at such time as the court shall direct.
Art. 422. If a defendant, sentenced to imprisonment, shall escape
before he has been committed, the sentence cannot be executed on
any person who shall be apprehended under an allegation, or suspi-
cion of his being the delinquent, until he has been brought before the
court and asked if he have any cause to show why the sentence should
not be executed. When, if an allegation of non-identity be made, and
supported by affidavit, the same proceedings shall take place as are
provided for by the last article; and until such decision he shall be
kept in custody.
Art. 423. In cases where the court has a discretionary power as
to the measure or selection of the punishment, if either the public
prosecutor or the defendant shall allege that he has matter to offer
which ought to produce an increase or diminution of the punishment,
which did not appear on the trial; the court may hear the same, or
in their discretion give time to produce it; provided it apply to
some one of the points set forth in the next following section. But
no evidence shall be taken of any circumstance in aggravation which
was, or ought to have been alleged, in the act of accusation; or in
alleviation, which might have been produced on the trial to show the
defendant not to be guilty.
Art. 424. If no application, in either of the modes above provided
for, shall be made for arresting or suspending the judgment, or if be-
ing made they should be overruled, the court shall proceed to enter
their judgment on the minutes of the court, and to declare it to the
defendant, which is called passing the sentence.
Art. 425. In all cases of crime, and of misdemeanor prosecuted
separately, the sentence of each prisoner shall be pronounced seve-
rally, but in the presence and hearing of all who may have been con-
victed during the same term of the court.
Art. 426. The judge who pronounces sentence must perform this
duty in a manner that he may deem the best calculated to give effect
to the example upon the hearers; the strictest silence must be ob-
served by those who are present; and it should be accompanied with
such reflections as may impress on the mind the importance of obe--
dience to the laws, and the dangers and infamy of infringing them.
Art. 427. When sentence is pronounced for murder, the seat and
table of the court shall be hung in black, and the prisoner shall, imme-
diately after the sentence is pronounced, be enveloped in a black man-
tle that shall cover his whole body, with a cowl or veil drawn over
his head; and shall be thus conveyed in a cart, hung with black, to
the place of his confinement.
Art. 428. If the judgment be the imposition of a fine, the clerk,
shall, without delay, issue execution for its recovery in the manner
directed by law.
Art. 429. If the sentence direct the forfeiture of, or suspension
from, the exercise of any office, or of any political or civil right, one
copy of the judgment shall be sent to the governor, who shall cause
542
CODE OF PROCEDURE.
it to be filed and recorded in the office of the secretary of state, and
published for one week in the gazette printed by the state printer.
Art. 430. If the sentence be for imprisonment, the sheriff shall
deliver a copy of the judgment, together with the body of the defend-
ant, to the keeper of the prison in which the sentence is to be executed.
;
SECTION II.
Of the exercise of the discretionary power given to the court in the selection and appor-
tionment of punishments.
Art. 431. Laws apparently equal in their provisions become un-
equal and unjust if indiscriminately applied, without modification, to
all who become subject to their operation. A difference of physical
force or moral feelings, in several culprits, may render the same pun-
ishment light to one which would be intolerable to another. Certain
circumstances, moreover, attending the commission of the same kind of
offence, may render it more or less immoral, injurious or difficult to
be repressed. No legislation can be sufficiently minute to provide
for all these gradations. The deficiency can only be supplied by
vesting in the judge, who applies the law, a discretionary power,
within certain limits, to select the kind of punishment adapted to the
case, and to increase or diminish its degree. The exercise of this
discretion forms one of the most important and difficult functions of the
judiciary power in practice, it must of necessity be irregular; but, in
order to render it as uniform as the nature of the case will admit, the
following rules are established, and these principles are enounced
in order more effectually to impress on the mind of the judge that
the discretion, vested in him by law, is not an arbitrary power, to be
exercised according to his caprice, or his feelings, or to gratify his
passions; but that it is required to be an act of sound judgment, guided
by views of utility, justice, and good morals;—and that in using the
power vested in him, of selecting, of increasing, and of diminishing
the punishment, he must act as he supposes the legislature would have
done had it been possible for them to provide for the particular case
under his consideration.
Art. 432. The scale of punishment, in this system of penal law, is
so graduated, that the medium between the highest and lowest punish-
ments, where a discretion is given, is intended to be applied to offences
marked by no circumstances of extenuation or aggravation.
Art. 433. The following are to be considered as circumstances of
aggravation. The effect they are to have in the increase of punishment
cannot be prescribed, but is left to the discretion of the judge, within
the limits given by law, in each case.
1. If the person committing the offence was, by the duties of his
office, or by his CONDITION, obliged to prevent the particular offence
committed, or to bring offenders committing it to justice.
2. If he held any other public office, although not one requiring the
suppression of the particular offence.
3. Although holding no office, if his education, fortune, profession,
or reputation, placed him in a situation in which his example would
probably influence the conduct of others.
4. When the offence was committed with premeditation.
CODE OF PROCEDURE.
543
5. Or in consequence of a plan formed with others.
6. When the defendant endeavoured to induce others to join in com-
mitting the offence.
7. When the CONDITION of the offender created a trust which was
broken by the offence, or when it afforded him easier means of com-
mitting the offence.
8. When, in the commission of the offence, any other injury was
offered than that necessarily suffered by the offence itself; such as
wanton cruelty, or humiliating language, in cases of personal injury.
9. When it was attended with the breach of any other moral duty
than that necessarily broken in committing the offence; such as per-
sonal injury accompanied by ingratitude.
10. When the injury was offered to one whom age, sex, office, con-
duct, or CONDITION, entitled him to respect from the offender.
11. When the injury was offered to one whose age, sex, or infirmity
rendered incapable of resistance.
12. When the general character of the defendant is marked by those
passions or vices, which generally lead to the commission of the offence
of which he has been convicted.
13. Whenever the injury has been offered without any provocation
on the part of the person suffering by it, and no other circumstances of
aggravation or extenuation appear, the medium punishment is that
which ought to be inflicted. The existence of such provocation is
hereinafter made a motive of extenuation; but when the act was done
from mere malignity of disposition, and not under the influence of any
of those passions which generally actuate mankind, it is an aggravation
of the offence.
Art. 434. There are also circumstances which ought to enhance the
punishment, although they form no aggravation of the offence; these
are:
1. The frequency of the offence. In most cases where the law is
well administered, this can only take place when the gratification de-
rived from the offence is more than equivalent to the evil produced by
the punishment. When the observation of the magistrate induces him
to believe that this is the cause of the increase of the crime, it should
be a motive with him to exercise the discretion given him to augment
the punishment.
2. The wealth of the offender. Where this is great, in all cases of
fine, the penalty must be increased in proportion. In all cases where
the punishment is an alternative of fine or imprisonment, or cumulation
of both, and the wealth of the offender is so great as to render the pay-
ment of the highest fine that can be imposed a matter of little import-
ance to him, imprisonment ought to be inflicted, unless some of the
other circumstances, which are herein directed to be considered, should
render it improper.
Art. 435. The following circumstances are to be considered in alle-
viation of the punishment:
1. The minority of the offender: if so young as to justify a supposi-
tion that he was ignorant of the law, or that he acted under the influence
of another, although he may have attained the age fixed by law for
rendering him responsible, and although he have not committed the
offence by such command, persuasion, or aid, as by the "Penal Code”
entitle him to a certain diminution of punishment.
544
CODE OF Procedure.
2. If the offender was so old as to render it probable that the faculties
of his mind were weakened.
3. The CONDITION of the offender. This in the several relations of
wife, child, apprentice, and ward, is specifically provided for under cer-
tain circumstances, in the Penal Code. Those CONDITIONS under other
circumstances than those there detailed; and all other CONDITIONS, which
suppose the party to have been influenced in committing the offence by
another, standing in a correlative superior situation to him, afford in-
ducements for diminishing the degree of punishment.
4. The order of a superior military officer, is no justification for
committing a crime, but under circumstances of misapprehension of
the duty of obedience, may be shown in extenuation of the offence.
5. When the offence was committed under a combination of circum-
stances, and under the influence of motives which may not probably
recur either with respect to the offender or to any other.
6. The measure of increased punishment for a repetition of offences
of the SAME NATURE, is prescribed by the Penal Code; therefore, the
medium punishment is that which is intended for the first offence when
it is not attended by any circumstance of aggravation or extenuation:
but if the party, convicted for the first offence, have previously sus-
tained a good character, and that offence be the only one of ANY
NATURE that he has committed, such good character and exemption.
from other offences, is a motive for lessening the punishment.
7. When the offence has been caused by great provocation, or other
cause sufficient to excite in men of ordinary tempers such passions as
require unusual strength of mind to restrain.
8. The state of health of the delinquent and the sex (if a female)
must be considered in the nature and duration of imprisonment, where
that is a part of the sentence.
Art. 436. In selecting the particular kind of punishment, where there
is a discretion, attention should be paid to the sex, the constitution,
the fortune, the education, and habits of life of the offender.
It is ap-
parent that hard labour is not the same punishment, when applied in
the same degree, to one used all his life to bodily exertion and to an-
other bred up to literary pursuits; to a robust man and to a delicate
That incapacity to be elected to public office will be a greater
penalty to one used to public life, than to him whose pursuits and
education have fitted only for attention to his own affairs; and that the
possessor of a large fortune will consider a moderate fine as no punish-
woman.
ment.
Art. 437. This section is from its nature recommendatory; and obli-
gatory only on the conscience of the judge; it is intended to direct, not
to confine, the exercise of his discretion. The only obligation it creates
is the moral one of exercising his power on this subject so as to appor-
tion the punishment, not only to the offence, but to the motives and
other circumstances of the offender; so as to equalize, as far as possible,
the effects of the punishment, and cause it, by a proper selection, to
counteract the passions which produced it.
Art. 438. All matters in aggravation, which form no part of the
charge in the act of accusation, and matters of extenuation which do
not amount to a legal defence, and which have not necessarily or inci-
dentally appeared to the court on the trial, may be produced, either
by the examination of witnesses in open court, or by their affidavits, as
CODE OF PROCEDURE.
545
the court may deem most conducive to justice in each particular case;
but the opposite party must, in all cases, have an opportunity of cross-
examining the witnesses, if he require it, and of producing counter-
proof.
CHAPTER XIV.
Of forms to be used in judicial proceedings in court.
SECTION I.
Of oaths and affirmations.
Art. 439. An affirmation is a solemn declaration made before a per-
son or court authorized to receive it, attesting the truth of a statement
already made, or about to be made, by the affirmant, or the truth or
sincerity of a promise made by him.
Art. 440. An oath is a similar declaration, accompanied by a reli-
gious invocation of the Supreme Being to bear witness to the truth of
the declaration or the sincerity of the promise, and agreeing to renounce
the blessing of God and the respect of man if the engagement should
be broken.
Art. 441. In order the better to enforce the obligation of an oath
upon those who might disregard its religious penal sanctions, an hono-
rary engagement is expressly added in the form established by this
Code.
Art. 442. An oath or affirmation can be legally administered, only
by a court, a magistrate, or some one specially commissioned to perform
that function.
Art. 443. If the person to whom the oath is to be administered pro-
fess the Christian religion, the oath shall be taken in the following form.
The deponent shall lay his hand on the scripture of the New Testament,
and shall, with an audible voice, repeat the following formule: "I
swear, in the presence of Almighty God, and by His holy word; and
on the faith of a person of probity and honour declare that [here he
shall repeat the purport of the oath]-and may God so bless and man
so honour me as this oath is truly and sincerely made."
Art. 444. If the person to whom the oath is to be administered be
one of the Jewish religion, he shall take it with his head covered, with
one hand on the gospels of the Old Testament, and shall repeat the
formule denoted by the last preceding article.
Art. 445. If the deponent profess any religion, according to the tenets
of which, any other ceremony is necessary to give the sanction of re-
ligion to the oath, such ceremony shall be observed.
Art. 446. The sanction of religion is added only to strengthen the
legal force of the engagement; any error, therefore, in that part of the
form, either as respects the Christian or any other religion, will not
affect the civil obligation or the penal consequences of its breach, nor
can any ecclesiastical power dissolve or lessen its force.
>
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code of procedure.
Art. 447. If the person professing the Christian religion, to whom
an oath is tendered, shall declare that he has religious scruples against.
swearing with his hand on the scriptures, that part of the ceremony
shall be omitted; but he shall raise his right hand, repeat the same
formule that is above directed for those professing that religion, omit-
ting only the words "and by his holy word."
Art. 448. Instead of an oath, in all cases where it is required or per-
mitted by law, an affirmation shall be made by those who are members
of any religious sect, according to the tenets of which it is considered
irreligious to take an oath, and such affirmation is declared, in all re-
spects, to be equivalent to an oath; and its breach, or falsity, incurs the
same penalties with the breach, or falsity, of an oath.
Art. 449. The declaration of the affirmant that he belongs to such
sect as is mentioned in the last preceding article, shall be sufficient proof
of the fact; but, although it should be false, the affirmation shall be as
valid, and its breach or falsity shall produce the same consequences as
if his declaration had been true.
Art. 450. The affirmant shall pronounce, in an audible voice, the
following formule: "I do solemnly, sincerely, and truly, declare and
affirm, that [the purport of the affirmation must be here enounced. ]"
Art. 451. No oath need be administered to an executive officer of
justice (after he has taken his oath of office), that he has done or will
do any act that is required of him by the duties of his office; a declara-
tion to that effect, signed by the officer in cases where his signature is
required, is sufficient; and the breach, or falsity, of such declaration in-
curs all the penalties that would have ensued on the breach or falsity
of an oath.
Art. 452. Nothing in the last article contained shall prevent the
swearing and examination of an officer of justice as to the manner in
which an official act was performed, when those circumstances become
a matter of controversy; the intent of the said article being to avoid
the multiplicity of oaths which occurs by the swearing of executive
officers, to the truth of their returns, in order to fine witnesses or ju-
rors for non-attendance, making affidavits to the service of notices,
swearing them to go out with a juror, or with the jury when they re-
tire to deliberate, and other official acts of the like nature ordered by
the court.
Art. 453. All returns of the manner in which any written order has
been executed, or any written notice has been delivered, must be in
writing, endorsed on or annexed to the order or notice, or on copies
thereof, and signed by the officer who has executed it.
Art. 454. When the duty which has been performed, is not the ser-
vice of any written order or notice, it shall be proved by verbal decla-
ration of the officer, in open court, and noted on the minutes.
Art. 455. The formule of the verbal declaration of any official act
that has been performed, and referred to in the preceding article, is as
follows: "I do declare, under the sanction of my oath of office, that I
did, &c. [enounce the particulars of the service performed.]"
Art. 456. When the duty is an official one, but to be performed by
an officer especially designated by the court for the purpose, the obli-
gation to perform it is incurred by the clerk stating, in the form pre-
scribed, the duty that is to be performed, and the assent of the officer
verbally given to perform it.
CODE OF PROCEDURE.
547
Art. 547. The formule for the statement to be made by the clerk,
under the last preceding article, is as follows, addressing himself to the
officer he shall say: "You are required, under the sanction of your
oath of office, to [keep this jury, &c. or any other official act]. Will
you perform this duty?" To which the officer shall answer, "I will."
Art. 458. The oaths, affirmations, and declarations, to be adminis-
tered in the course of judicial proceeding, in a court of criminal juris-
diction, are the following, each of them to be begun and concluded by
the formule herein before prescribed for each of these engagements:
1. That of a grand juror. "I swear, &c., as one of the grand jurors
for this district, I will diligently inquire, and true presentment make,
of all such offences as this court has cognizance of: that I will present
no one from hatred or malice, nor leave any one unpresented from
favour, affection, reward, or the hope of reward. But that I will, to
the best of my ability, perform all the duties enjoined upon me as a
grand juror, and may God so bless, &c."
2. The oath of a petit juror. "I will, without passion, prejudice,
or favour, hear the proofs and arguments offered in this cause, and de-
termine on the truth of the accusation submitted to my decision; and
give a true verdict according to law and the evidence, and, &c."
3. The oath of a witness. "The evidence I am about to give, shall
be the truth, the whole truth, and nothing but the truth, under the
direction of the court as to the legality of the testimony."
4. The oath of a deponent to an affidavit. "What is stated in this
affidavit, as of my own knowledge, is true [if any other matter be
stated, add] and all the other matters stated as true, I believe to be
true."
5. Declaration of an officer of the service of a verbal order or notice.
"That I did, on the
day of
A. B. that his attendance was immediately
juror or witness.”
now last past, give notice to
required in this court as a
You are required,
6. Statement and direction to an executive officer to perform the duty
of going out with a juror or jurors during a trial.
&c. to go out with such of the jurors as have leave of the court. You
shall not suffer any one to speak to them, nor shall you yourself speak
to them, unless it be to require their return to the court, and you shall
return with them without any unnecessary delay.”
7. The like direction to keep the jury during their retirement. "You
are required, &c. to keep this jury in some convenient place, without
food and drink, save bread and water, unless with leave of the court.
You shall suffer no one to speak to any of them, neither shall you speak
to them yourself, without such leave; unless it be to ask them whether
they be agreed on their verdict; and you shall return with them into
court when they are so agreed ; [in cases where a secret verdict is permitt-
ed, the following clause shall be added,] or you shall suffer them to dis-
perse after having made a secret verdict, if they shall obtain leave of
the court for that purpose.
Art. 459. All affidavits must be certified to have been sworn or affirm-
ed by the clerk of the court, if taken in court, with the style of the
court; or by the magistrate or commissioner, with the addition of their
offices; and must be signed by the deponent in his hand-writing if he
can write, or with his mark if he cannot.
Art. 460. An oath, taken in court, shall be administered by the judge
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CODE OF PROCEDURE.
or the clerk, by either enouncing the formule of the oath to the person
who takes it, and causing him to repeat it after him, or giving it to him
in writing that he may read it aloud.
Art. 461. Strict silence shall be observed by all but those occupied in
administering and repeating the oath ; and the court shall, during that
time, transact no other business.
Art. 462. If any one who is legally called on to take an oath, or affirm-
ation, or to be examined as a witness in any court of civil or criminal
jurisdiction, shall refuse so to do, he may be committed to prison, in
close custody, until he shall consent, besides incurring such other penal-
ties as are provided by law; provided, that such imprisonment shall not
continue longer than the end of the term in which he was committed,
unless the commitment be within three days of the end of the term ;
in which case, the imprisonment may continue for three days after.
*
SECTION II.
Of the opening and adjournment of courts, and of the form in which the minutes are to
be kept.
Art. 463. No cOURT, according to the definition of the term, can do
any legal act before it is opened by a public proclamation, which may
give notice that the persons authorized to constitute the court have met,
under the circumstances necessary to give existence to that body; which
opening must be entered on the minutes, stating the day, hour, and place,
at which it took place.
Art. 464. Adjournments must, in like manner, be made by proclama-
tion, entered on the minutes; and if, from the continuance of a trial or
other cause, the court shall continue its sessions until after twelve at
night, the entry shall be made in this, as in all other cases, according to
the truth.
Art. 465. The minutes of a court are a record of all the proceedings
of such court; and, in order to secure their correctness, a book shall be
kept by the clerk, in which he shall enter a note of each proceeding at
the time it takes place. This book shall be open for the inspection of
all persons interested, until the opening of the court on the next day;
and immediately after the opening, the minutes of the preceding session
shall be openly read by the clerk, and all errors therein shall be correct-
ed by order of the court, and the minutes shall then be fairly copied into
the record-book of minutes.
Art. 466. The names of the defendants in each trial, of the witnesses,
and of the jurors who are sworn, and of the counsel who appear, shall
be entered on the minutes, distinguishing the witnesses called for the
prosecution from those called by the defendant.
Art. 467. When any instrument in writing is produced in evidence,
a short note or description of it, containing the general tenor, the par-
ties, and the date, shall be entered on the minutes, and some mark made
on it by the clerk to identify it.
Art. 468. All the orders, and judgments, and every other act of the
COURT whatever, shall be recorded on the minutes.
Art. 469. A note of every application made to the court during its
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549
session, and by whom made, and for whom, must be entered on the mi-
nutes, together with the decision of the court thereon, whether granting
or refusing the application.
•
SECTION III.
Of the order of proceeding on the first day of the term.
Art. 470. The judge having taken his seat, shall order the court to be
opened. The clerk shall then say, "Crier, make proclamation. " The
crier then, with a loud voice, proclaims, "Silence! while I proclaim
the orders of the court. This court [repeating the STYLE of the court]
is now open of this all persons are required to take notice, and to de-
mean themselves with the reverence due to the laws and the respect they
require to be paid to the important functions of those who administer
them."
Art. 471. The clerk shall then, after entering the opening of the
court on the minutes, order the crier to call the officers of justice, whose
duty it shall be, according to law, to attend; which he shall do by
repeating the formule, "Silence! while I proclaim the orders of the
court"—which formule shall introduce all proclamations hereby direct-
ed to be made. He shall then say, "All officers of justice, whose duty
it is to attend this court, answer to your names, or you will incur the
penalties of law." He shall then call each name three times, and the
clerk shall enter on the minutes the appearance or default of each.
Art. 472. On the appearance of the officers the sheriff shall assign
to each his separate duty.
Art. 473. The clerk shall then order proclamation to be made for
calling the grand jury, which shall be done in the following form: "You
good men, who have been selected to perform the important duties of
grand jurors, answer to your names, and take your seats as you are
called." If a sufficient number of the jury appear, they shall be sworn.
Art. 474. When the grand jury are sworn, the court shall proceed
to give them their charge, and to have that part of this code read to
them which concerns their duties, and to deliver them the copy of the
calendar as is herein before directed. Previous to which the clerk
shall direct proclamation of silence to be made when the charge is giving
to the grand jury.
Art. 475. When the grand jury has retired, the clerk shall order
proclamation to be made for the calling of the petit jury, in the follow-
ing form: "You good men, whose duty it is to decide, as jurors, be-
tween the state of Louisiana and those who are accused of offences
against the laws, answer to your names as they are called." The names
on the panel shall then be called, and the clerk shall take note of the
defaulters.
Art. 476. When any grand juror shall appear, after the others are
sworn, the oath shall be administered to him, and he shall, with a cer-
tificate of its being taken, be sent to the grand jury.
Art. 477. Proclamation shall then be made, requiring all magistrates
who have taken any recognizances or examinations, which have not
been delivered to the clerk, forthwith to bring them into court.
550
CODE OF PROCEDURE.
Art. 478. Persons bound by recognizance shall then, by proclama-
tion, be called as follows: "All you who are bound by recognizance to
appear at this court to answer complaints against you, come forth when
your names are called, or your recognizance will be forfeited." The
defaulters shall then be noted, and proclamation shall be made, with res-
pect to such defaulters, in the following form: A. B. and C. D. [repeat-
ing the names of the bail] produce E. F. [the person delivered to bail]
for whose appearance you are answerable, or you will forfeit your
recognizance.'
SECTION IV.
Of the forms to be used after an indictment or information has been filed.
Art. 479. When an act of accusation has been filed, founded on any
written instrument, the original of which is annexed according to the
former provisions of this code, the defendant, at the time for that pur-
pose prescribed, shall be brought into court, and the court shall inquire
whether he has employed counsel for his defence; if he has not, coun-
sel shall be assigned him. The clerk shall then address him to this
effect "A. B. an indictment [or information] has been filed against
you, of which you have been served with a copy; here is the original
of the instrument annexed to that act. You are at liberty, under the
inspection of an officer of the court, to examine the said instrument,
and to compare it with the original, to see that the copy is correct."
Art. 480. After the defendant shall have had an opportunity of ex-
amining the instrument when one is annexed, and in all cases when no
instrument is annexed, the clerk shall, at the time for that purpose
herein before prescribed, address the defendant to this effect: "A. B.
if you have any exception to make to the indictment [or information]
of which you have received a copy, either for any defect of sub-
stance or form [or "because there is a variance between the copy of
the instrument in the indictment and the original which you have seen,"
in cases where there is an instrument,] or because the name by which you
are called in the act of accusation is not your true name, this is the
time to make such exception; hereafter it will be too late."
Art. 481. If no exception be made, the clerk shall write on the back
of the indictment: "This
day of
the defendant
in this indictment was personally called on to make exceptions, if any
he had thereto, and warned that they would not hereafter be received,
but made none.
""
Art. 482. The arraignment shall be made in the form before pre-
scribed.
Art. 483. On the day appointed for the trial, the witnesses, as well
on the part of the prosecution as of the defendant, shall be called ; and
if any do not attend, process may be applied for, to compel their atten-
dance; or if an application to postpone the trial be intended, it must
be made before a juror is sworn.
Art. 484. If the trial is ordered on, the clerk shall address the de-
fendant to this effect: "A. B. the jurors who are now to be called are
those who are to decide on your innocence or guilt. If you do not
CODE OF PROCEDURE.
551
desire to be tried by any particular jurors, you may set aside nine of
them, without assigning any cause; and if you have good cause to set
aside any others, you may do so by declaring it: what is good cause,
your counsel will explain to you. If you have any objection to make
to the manner in which the jury has been drawn, you must now do so,
or you will hereafter be precluded. Your objections to individual
jurors must be made when they come to be sworn, but before they are
sworn."
Art. 485. The clerk shall then proceed to draw the names of the
jurors, and as each shall come to be sworn, the clerk shall, in cases of
CRIME, say, "Defendant, look on the jury! Juror, look on the de-
fendant!"And if no challenge is made, shall proceed to administer
the oath.
Art. 486. When a full jury shall be sworn, the clerk shall address
them thus: "Gentlemen of this jury, an indictment [or information,
as the case may be,] has been filed against A. B. [the defendant] in
the following words. To this accusation he has pleaded not guilty.
You are the persons upon whom the task is imposed of deciding whe-
ther he be guilty or not guilty. This you are to determine according
to the evidence which will be offered to you.”
Art. 487. Courts of criminal jurisdiction may make such rules for
the order of proceeding therein; but copies of all such rules must be
sent to the governor, the senate, and the house of assembly, on the
first day of the session after they shall have been made, or if the leg-
islature be in session when such rules are entered, within five days after-
wards; provided, that no such rule shall be contrary to any provision.
in this system of penal law.
CHAPTER XV.
Of the officers of courts of criminal jurisdiction.
Art. 488. There shall be in every court of criminal jurisdiction the
following officers: a clerk, an interpreter, a reporter, a crier, and a
sheriff with his deputies.
SECTION I.
Of the clerk,
Art. 489. The duties of the clerk are, to keep correct minutes under
the direction of the judge; to preserve all the papers and records of the
court; to administer oaths in court; to direct the crier to call the per-
sons whose attendance may be required; to file all papers directed to be
filed, by endorsing on them some description by which they may be
known, together with the date of their being filed; to receive and re-
cord all indictments and informations, and to arraign the defendants;
to demand, receive, record their answers; to give authenticated copies
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CODE OF PROCEDURE.
of the minutes and records; and to do all other things as he may be re-
quired by law to perform.
Art. 490. The clerk may appoint a deputy, whose official acts shall
be valid; provided the deputation be in writing and recorded on the
minutes of the court. When neither the clerk nor his deputy appears,
the judge may appoint some person to officiate, whose appointment
shall be entered on the minutes of the court, and whose official acts
shall be valid.
Art. 491. The clerk is civilly liable for all the acts of his deputy,
and criminally for all such as he shall have authorized, or knowingly
permitted, in the manner described in the criminal code.
Art. 492. The clerk shall keep an office, in which all the records
and papers of the court shall be kept, and methodically arranged in
such manner as the judge shall order; and the court shall, by rule, di-
rect at what hours such office shall be kept open; and during such hours
the clerk is bound to show any paper filed in such office, to any person
who may require to see the same; but no acts of accusation, or evi-
dence in support of the same shall be shown, or copies thereof given,
to any but the court, the party accused, the grand jury, or the public
prosecutor, before the trial of the cause.
SECTION II.
Of the interpreter.
Art. 493. An interpreter shall be appointed for each court of crimi-
nal jurisdiction, who shall be well acquainted with the English, French,
and Spanish languages, and who shall be sworn faithfully to perform
the duties of his office.
Art. 494. It shall be the duty of the interpreter to translate such
papers as are produced, and to interpret such declarations and proceed-
ings as are made in court, so that they may be understood by the court,
the jury, the parties, and others present who ought to know the con-
tents; if any of them are ignorant of the language in which such
papers are written, such declarations given, or such proceedings had.
Art. 495. Whenever the defendant cannot understand English, a trans-
lation, of the act of accusation and of all papers annexed to the same,
into some language which he understands, shall be given to him, with
the copy herein before directed to be served on him; and if he require
it, his arraignment shall be postponed until such copy be given.
Art. 496. Whenever any translation or interpretation is required
into, or from, a language with which the interpreter is unacquainted,
or in the absence or sickness of that officer, or of a vacancy in the office,
the court may appoint a proper person to do the particular service re-
quired, first administering an oath for the faithful performance of the
duty.
CODE OF PROCEDURE.
553
SECTION III.
Of the reporter.
Art. 497. A reporter shall be appointed by the governor for each
court having criminal jurisdiction, who shall receive such emolument
as the legislature shall, by special law, direct: he shall be sworn faith-
fully to perform the duties of his office. The reporter shall not prac-
tise as counsellor or attorney in any criminal cause in that or any other
court.
Art. 498. The duty of the reporter shall be to attend at all the sit-
tings of the court; to take notes of all the acts of accusation, testimony,
arguments, verdicts, judgments, and other proceedings, in each crimi-
nal cause that shall be brought before such court; to perform which
duty a convenient seat shall be assigned to him; and from these notes
he shall make a faithful report.
Art. 499. Within one month after every term of such court, or of-
tener at his discretion, he shall publish such reports in some gazette
printed in the city of New Orleans.
Art. 500. The governor is authorized to contract with the proprie-
tors of a gazette for the publication of such reports; and as an equiva-
lent for the expense-all judicial orders, directed to be published by any
court-all advertisements for sheriff's sales, either on execution or for
taxes-all advertisements directed to be made by syndics-shall be pub-
lished in such gazette, at the usual rates now allowed by the court.
Art. 501. The proceeding in the causes designated or presented in the
chapter next following, are excepted from the operation of the three last
preceding articles, and from any other provision in the system of penal
law, contrary to the directions of the said chapter.
Art. 502. It shall also be the duty of the reporter to make and de-
liver to the governor, and the attorney general, once in every three
months, a return of names of all the persons bailed or committed to pri-
son by any court or magistrate in the district, designating, in separate
columns, the offence charged; whether bailed or committed, and whe-
ther the accusation has been followed up by an indictment or informa-
tion, and whether the indictment or information be for the same offence
as originally charged by the commitment; whether the party has been
discharged, and by what authority, and for what cause; and whether
tried and acquitted, or convicted, and if convicted, of what offence; and
how sentenced, and whether sentence has been executed, and how: de-
signating also, the sex, age, place of nativity, and profession or trade,
of the defendant; whether he could write or read, together with the
dates of the commitment and other proceedings, according to forms to
be furnished by the governor, who may require by them such addi-
tional information as may show the prevalence or suppression of differ-
ent offences, and the general operation of the penal laws.
Art. 503. Once in every year the governor shall cause an abstract to
be made of all the returns, omitting the names in cases of misdemeanor,
and cause the same to be published; to which abstract shall be added
(from the return directed by the Code of Reform and Prison Discipline
to be made by the keeper) opposite to the name of each convict, who
3 U
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CODE OF PROCEDURE.
has been committed to the state prison, whether he is still in custody,
or discharged, and how ; and if in custody, whether at labour, or in soli-
tude; and if at labour, how employed.
SECTION IV.
Of the sheriff and other officers of justice.
Art. 504. It is the duty of the sheriff of the district in which any
court of criminal jurisdiction shall sit, to attend its sessions by himself
or his deputy; and he, or such deputy who acts for him, shall have at
least two other deputies constantly in attendance, to execute the orders
of the court.
Art. 505. The sheriff shall also present to the court, at the opening
of its session, a list containing the names of all the constables; and the
court shall also designate the number of them required for daily attend-
ance, who shall serve in rotation.
Art. 506. The constables, during the session of the court, shall be
under the direction of the sheriff.
Art. 507. The judge may, in or out of court, whenever he shall deem
it expedient for the preservation of the peace or the execution of the or-
ders of the court, appoint any number of special constables he may
think proper, who shall continue in office during the time, or for the oc-
casion, for which they are named.
Art. 508. The sheriff's officers and constables may, when the sher-
iff or the court deem it necessary, be armed with staves; but no man,
armed in any other manner, shall be allowed to enter the hall in which
the court is sitting. An armed guard may, with the approbation of the
judge, he employed by the sheriff, to guard a prisoner to and from the
court whenever there is danger of a rescue, but they cannot enter with
their arms. Nothing in this article shall prevent officers in the army
or navy from entering the court with their usual side-arms.
Art. 509. The crier is an officer of justice appointed by the court;
his duty is to make proclamations for opening and adjourning the court;
to call and swear the jurors and witnesses; to preserve silence and order
in court, and to remove those who disturb its proceedings: the whole
under the orders of the court.
CHAPTER XV.
Of cases in which the publicity of legal proceedings may be limited.
Art. 510. In all prosecutions for the following offences, that is to say:
for assault, accompanied by any of the circumstances set forth in the fourth
article of the fourth section of the first chapter nineteenth title and sec-
ond book of the Code of Crimes and Punishments; for assault with intent
to ravish; for rape, adultery, offences against decency, and defamation.
implying a charge of either of the offences. During the examination of
witnesses, previous to the commitment for those offences, no person
CODE OF PROCEDURE.
555
shall be present but the magistrate before whom the complaint shall be
made, and such other magistrates as he may request to aid him in the
examination, the public prosecutor, the accused and his counsel, the per-
son complaining, the sheriff, and other officers of justice attending on the
magistrate, the witnesses, and such persons, not exceeding ten for each
party, as the complainant and the accused may desire to have admitted.
Art. 511. On the trial, the persons admitted into court shall be res-
tricted to those mentioned in the preceding article, with the officers of
court, and the jurors sworn to try the cause.
Art. 512. In making the report of any such trial, the reporter shall not
give the details of the evidence, or publish the names of the witnesses.
Art. 513. Any person who shall publish any account of such trial,
containing any indecent or wanton details, shall be fined not exceeding
two hundred dollars, and imprisoned not exceeding sixty days, if the
account be substantially true; but if it be false, the punishment shall be
doubled, and the prosecution and trial for such offence shall be conduct-
ed according to the rules laid down in this chapter.
CHAPTER XVI.
Of costs.
Art. 514. Until the system by which magistrates and officers of
courts and of justice are remunerated for their services by fees, shall
be abolished, the state shall pay costs in all cases where the accused is
discharged on an acquittal or for want of prosecution.
Art. 515. The payment of costs is not to be awarded in all cases
on conviction. The defendant may, in some cases, be exonerated from
them altogether, or he may be directed to pay a certain sum towards
the payment of costs. This is at the discretion of the court, and must
be exercised so as to proportion the amount of costs to the punishment
inflicted.
Art. 516. Costs can only be recovered by execution, in the manner
directed for the recovery of a fine; and no one shall be detained in
prison to enforce the payment of costs, until after the DISCUSSION of his
property, and then only in the manner directed in cases of fines.
CHAPTER XVII.
Of prescription as applied to offences.
any of-
Art. 517. There is no prescription against prosecutions for
fences other than those especially provided for in this chapter.
Art. 518. Prosecutions for all misdemeanors, except public offences,
are prescribed by the lapse of three years after the commission of the
offence.
Art. 519. Whenever the indictment is for a crime, and the party is
556
CODE OF PROCEDURE.
found guilty of a misdemeanor, according to the rules herein before
established in the chapter of Verdicts, the prescription does not apply.
Art. 520. Prosecutions for injuries to reputation, for rape, assault
with intent to ravish, assault aggravated by injury to pudicity, are pre-
scribed by one year..
Art. 521. Prosecutions for an attempt to commit a crime, if no other
offence is committed by the attempt, are barred by one year.
Art. 522. The prescription is barred in two cases:
1. If complaint was made of the offence within the time prescribed,
although it was not followed by further prosecution, if the offender was
either unknown or could not be found, or was rescued, or escaped.
2. Where the party injured, or the person whose duty it was to pro-
secute, was absent from the state, or was prevented by force or impri-
sonment, or debarred by threats, from prosecuting; in either of which
cases the prescription begins from the time the party shall return, or
the disability shall cease.
Art. 523. When the defendant shall, according to the rules herein-
before prescribed, except to the form of any act of accusation, that the
time at which the offence is alleged to have been committed is beyond
the time limited by the prescription. Such exception shall not be al-
lowed if the public prosecutor shall undertake to show, on the trial,
either of the circumstances (designating which) that are in the last pre-
ceding article declared sufficient to rebut the prescription; and if he
shall fail so to do on the trial, or to show that the offence was com-
mitted within the time limited, the defendant must be acquitted.
Art. 524. Although there is no prescription for prosecutions for of-
fences not enumerated in this chapter, yet provision will be found in
the Code of Evidence to check any attempts to oppress, by delaying
the accusation.
TITLE III.
OF THE MODE OF PROCEDURE IN CERTAIN CASES NOT IMMEDIATELY CONNECTED
WITH PROSECUTIONS.
CHAPTER I.
Of inquests on dead bodies.
Art. 525. Whenever death shall be caused by violence, or a dead
body of any person shall be found, and it is not known in what manner
he came by his death, notice shall be given to the coroner of the parish,
or, in his absence or inability to serve, to a magistrate.
Art. 526. Immediately after receiving such notice, it shall be the
duty of the coroner, or magistrate, to summon a jury of inquest, con-
sisting of eighteen persons qualified to serve as petit jurors, to meet at
the place where the dead body is.
CODE OF PROCEDURE.
557
Art. 527. Officers of justice, and deputies whom the coroner may
appoint, are bound to execute all his legal warrants for summoning the
jury of inquest, and for making such arrest and serving such orders as
he is authorized to make.
Art. 528. When twelve or more of the jury are assembled, they
shall be sworn, in the form herein before prescribed, diligently to in-
quire into the cause and manner of the death of the person whose body
is before them, and to make a true inquisition according to the evidence
offered to them, or arising from the inspection of the body.
Art. 529. A surgeon or physician shall also be summoned and sworn,
if any can be found within ten miles, as a witness, who shall, in the
presence of the jury, inspect the body and give a professional opinion
as to the cause of the death.
Art. 530. The coroner shall also summon and examine as witnesses,
on oath, all such persons as he or any of the jury shall reasonably sup-
pose to have any knowledge of facts to be ascertained by the inquest.
Art. 531. After hearing the testimony, the jury shall determine
when and in what manner, and by the act of whom
and by the act of whom it shall appear to
them that the deceased came to his death; and when a majority of such
jury shall agree in making any such statement, the same shall be re-
duced to writing by the coroner and signed by the jurors agreeing to
the same. This statement is called the coroner's inquest.
Art. 532. If by the inquest it shall appear that any DESIGNATED
person has been guilty of an offence in producing the death of the de-
ceased, either as principal or accomplice, the coroner shall immediately
issue his warrant for the arrest of such person, which shall be in the
form of warrants of the like nature issued by magistrates, and shall be
executed and proceeded on in the same manner.
Art. 533. The coroner has power to summon witnesses, and issue
all such process to enforce their attendance and that of the jury, and to
punish a refusal to attend, or to testify, in the same manner as a magis-
trate may in cases submitted to his jurisdiction. He has also the same
power to issue a search warrant for any article necessary to the investi-
gation before him, that is by this Code given to magistrates.
Art. 534. The inquest, together with any evidence that may have
been taken by the coroner, the return of the warrant, shall be trans-
mitted to the clerk of the court having cognizance of the offence; and
all material witnesses shall be bound over by the coroner to appear at
such court; and in relation to the arrest, examination, and other pro-
ceedings, after an inquisition, the duties of the coroner and the officers
of justice shall be the same as those prescribed generally by this Code
in cases of warrants of arrest issued by magistrates.
CHAPTER II.
Of the disinterment and dissection of dead bodies in cases of sus-
pected murders.
Art. 535. Whenever a FAMILY-MEETING of the relations or friends
of the deceased, convened according to law, shall determine that it is
558
CODE OF PROCEDURE.
expedient to make an examination of the dead body of any person who
has been already interred, in order to discover the cause of his death,
and shall make application to a judge for that effect; or whenever the
judge shall himself deem it necessary, in consequence of evidence pre-
sented to him, he shall appoint two surgeons to perform any chirurgical
operation that may be necessary, and shall issue his order to the sheriff
to have the body disinterred and examined.
Art. 536. The surgeons shall make a VERBAL PROCESS of the whole
professional proceeding, which they shall sign, and the sheriff shall also
make minutes of the whole of his proceeding, which shall be signed by
him, and at least three persons who were present at the operation.
Art. 537. The VERBAL PROCESS of the surgeons and the minutes of
the sheriff shall be returned to the judge who issued the order, and
may serve as corroborating testimony to found a warrant of arrest, but
shall not be evidence on the trial.
Art. 538. The family-meeting may, in like manner, apply for the
examination of the dead body before interment, and when the order is
granted, the same proceedings as are before directed shall take place.
CHAPTER III.
Of the proceedings in case of property found, where the owner is
unknown.
Art. 539. When any one shall come by finding to the possession of
any personal property, greater in value than twenty dollars, of which
he has no reason to believe any designated person to be the owner, he
shall be deemed to have concealed the same, and to have appropriated
it to his own use, so as to incur the penalties directed by the
ticle of the Code of Crimes and Punishments, unless he shall pursue
the directions of this chapter.
ar-
Art. 540. He must within three days give to the parish judge a
written notice, containing a description of the property found, with its
marks (if any), and the time and place of finding the same.
Art. 541. If the property be above the value of one hundred dollars,
he must either deliver it to the sheriff of the parish, or give such se-
curity as the judge shall approve, to restore the same if legally claimed
within six months.
Art. 542. If it be of greater value than three hundred dollars, con-
sisting of money, jewels, gold or silver bullion, notes or other instru-
ments in writing, or any article of small bulk, he shall deposit the same
in some bank, if there be one within five miles, which will take
charge of the same as a deposit for safe keeping-if there be no such
bank within that distance, it shall be deposited with the parish judge,
unless the finder give the security mentioned in the last preceding
article.
Art. 543. A particular inventory of the property must be made by
the parish judge and recorded in his office.
Art. 544. Within eight days after the report made to the parish
judge, he shall cause an advertisement of the finding, describing the
CODE OF PROCEDURE.
559
property particularly, to be published, with a notice to the owner to
claim the same within six months from the time of finding; which
advertisement shall be continued once every month during the six
months.
Art. 545. If the owner appear within the six months, and prove his
property to the satisfaction of the judge, it shall be restored to him on
his paying all the costs of preserving the same, all the expenses attend-
ing the procedure decreed by this chapter, and ten per cent on the
value of the property to the finder.
Art. 546. This chapter applies to property found stranded or drift-
ing in any lake or stream of water within the state, except only that,
in this last case, the owner shall be bound to pay a reasonable salvage,
proportioned to the trouble and risk of saving and securing the pro-
perty, over and above the ten per cent on the value; which salvage
shall be determined by the parish judge.
Art. 547. If no owner appear to claim the property within six
months, it shall be delivered to the finder, if not in his possession, and
if it be, his bonds shall be cancelled, and he shall not be criminally
liable for any use he may make of the same.
CHAPTER IV.
Of the mode of proceeding in cases of vagrancy.
Art. 548. A vagrant is one who, having no visible means of sub-
sistence, lives in idleness, or in the practice of drinking, or gaming,
and who, by the whole of his conduct and character, gives just reason
to believe that he gains his subsistence by illegal means.
Art. 549. On the complaint of three householders to a magistrate,
stating, that they have reason to believe, and detailing those reasons,
and that they do believe that any designated individual comes within
the description abovementioned, the magistrate shall issue his warrant
to bring the person before him, and shall require him to give an ac-
count of the means by which he gains his living.
Art. 550. The account required by the last article may, if the party
implicated desire it, be given to the magistrate in private, but it must
be on oath, and supported by at least one credible witness; and if such
account show legal means of subsistence, to the satisfaction of the ma-
gistrate, the party shall be dismissed. But if the party refuse to render
any account, or render one not satisfactory to the magistrate, he shall
be required to report himself to the magistrate, and to show, within
three days, that he has adopted some regular means of livelihood, or to
leave the district, or to give security for his good behaviour.
Art. 551. If the party fail in performing one of the conditions pre-
scribed by the last section, the magistrate shall issue his warrant to
send him to the HOUSE OF INDUSTRY, there to be employed for sixty
days, or until he shall find security for his good behaviour, or that he
will leave the state and not return within two years.
Art. 552. If after his discharge the party shall again be found in a
state of vagrancy, either in the same or in any other district in the
560
CODE OF PROCEDURE.
state, he shall, after the like inquiry, be sent to the house of industry
for six months; and the same process shall be repeated as often as the
same kind of life shall be resumed.
Art. 553. No person shall be deemed a vagrant, under the provisions
of this chapter, who, from bodily infirmity, or infancy, or old age, is
unable to gain a livelihood by labour. Persons of this description, if
without the means of subsistence, are under the care of the police of
the parish to which they belong.
CHAPTER V.
Of the mode of proceeding in cases of alleged insanity.
Art. 554. Insanity alleged on the trial to have existed at the time of
committing the offence, must be determined like any other ground of
defence by the jury impannelled for the trial of the cause; but if the
defendant be acquitted on that ground, it should be specially so found,
that the court may make order for his safe custody, according to the
provisions of the Code of Crimes and Punishments.
Art. 555. If insanity be alleged, or observed by the court, to exist
at any other stage of the proceeding, it must be inquired of by a jury
specially sworn for that purpose, who shall be drawn from the panel of
petit jurors in the same manner as they are drawn for the trial of causes.
Art. 556. If the insanity be alleged or discovered before the trial,
or after conviction and before judgment, the question to be submitted
to the jury shall, in the first case, be, whether the defendant is of a
sufficiently sane mind to make his defence, or give instructions for it ; in
the second case it shall be, whether he have sufficient sanity of mind to
show cause against the judgment, and take those other measures he is
allowed to take for the diminution of the punishment.
Art. 557. If the insanity be alleged after judgment, the inquiry
shall be, if it exist in such a degree as to make him dangerous to others.
or unconscious of the nature and consequences of his offence.
Art. 558. Whenever, in any of the cases mentioned in the three
last preceding articles, the insanity of the defendant shall be alleged,
or shall be observed by the court, they shall name a physician to attend
him, in order that he may be examined as a witness before the jury.
Art. 559. Counsel shall be assigned to the defendant on such inquiry
if none have before been employed or assigned.
Art. 560. The jury may interrogate the defendant on such inquiry.
CHAPTER VI.
Of the mode of proceeding in trials for adultery.
Art. 561. In order to avoid collusive attempts between the husband
and a pretended adulterer to obtain a divorce, to the injury of the wife;
CODE OF Procedure.
561
or between the husband and wife, to injure an innocent person, charged
as the adulterer; the Code of Crimes and Punishments has provided,
that prosecutions for adultery shall be joint against the wife and the
supposed adulterer (if he be alive); and that there can be no conviction
of the one without the other, under the modifications to be contained
in this code these are the following:
1. If the defendant, who is charged with being the adulterer, shall
have been either summoned or arrested, but he should not appear, an
attorney shall be named for his defence, who shall enter a plea of
"not guilty" for him, and the trial shall proceed in his absence.
2. If he be alive, but shall have left the state before the prosecution.
is commenced, a warant or citation shall issue against him, and be re-
newed, from time to time, for six months, until it shall be served, and
until the trial shall actually take place. If he be not found, the trial
may proceed, after the expiration of the six months, against the wife.
alone.
CHAPTER VII.
Of the application of moneys collected for fines, and of compensa-
tions for services to prosecutor, and for losses incurred by inno-
cent defendants.
Art. 562. The mode in which fines are to be collected, is prescribed
in the chapter of punishments in the Code of Crimes and Punishments.
Art. 563. Sheriffs, coroners, and the marshal of the city court of the
city of New Orleans, must, once in every three months, render to the
treasurer of the state, an account of all fines either of them may have
received prior to that time; or if they have received none, make a re-
turn to that effect, in writing, signed by them respectively.
Art. 564. At the time of rendering such account, the balance in the
hands of the officer rendering it shall be paid to the treasurer of the
state, who shall carry the same to account of a fund, called the "com-
pensation fund"-which shall be applied, first, to the payment of war-
rants for recompense drawn by the governor, or by the judge, and
public prosecutor, in cases authorized by the second chapter, first
title, first book of this Code; secondly, to such other uses as the legis-
lature may direct.
Art. 565. If any sheriff, coroner or marshal shall neglect or refuse
to render such account, and to pay the balance that may be due thereon,
or to make such return, he shall forfeit a sum of fifty dollars.
Art. 566. It is hereby made the duty of the treasurer to cause pro-
secutions to be commenced for the offences against this chapter; and
also, to file petitions in a court of competent jurisdiction for an account
of fines that may have been received; and in such suits the defendants
shall pay costs, although it may appear that no money was due to the
state; unless the defendant can show, that he had made the returns,
required by this chapter, before the commencement of the suit.
Art. 567. Suspicion of guilt sometimes subjects the innocent to the
vexatious expense and privation of liberty incident to the measures
3 V
562
CODE OF PROCEDURE.
preparatory to the trial, by which their innocence is ascertained. Jus-
tice requires that such persons should be compensated by the public,
because the loss and inconvenience was caused by its officers, and in
attempting to secure its peace and safety. To do full justice in the
few cases where it will be found due, would expose the treasury to
petitious demand in so many others, that the law can only give relief
in such a manner as to aid the more needy class of sufferers, while it
offers no temptation to fraudulent combinations:
Art. 568. Therefore, whenever the judge who, before trial, shall
discharge a person who has been committed, or bailed, for any offence-
or whenever the jury, who shall acquit any defendant-shall certify,
that he did not, by any improper conduct, give reasonable ground for
suspicion that he had committed the offence, he shall be entitled to such
compensation for the losses he has sustained by reason of the prosecu-
tion, as the judge shall think reasonable; but such compensation shall
in no case exceed an amount of emoluments which he might have made
during the time that he was confined, or necessarily employed in his
defence, to be ascertained according to the following circumstances :
1. If the defendant have no trade or profession, the compensation
shall be calculated according to the wages of day-labourers.
2. If he be a mechanic, the average rate of wages for hired work-
men of his trade shall be the measure, without any regard to the parti-
cular skill of the defendant.
3. If the defendant pursue any other calling or profession, the com-
pensation shall not exceed twice the amount which could be allowed to
a mechanic.
Art. 569. The sum allowed shall be paid by the treasurer out of
the compensation fund, on the judge's warrant, countersigned by the
clerk of the court, to the person in whose favour the allowance is
made.
Art. 570. In such cases the acquittal shall always be published, and
the expenses paid by a similar draft on the same fund.
GENERAL PROVISIONS.
Art. 571. No omission of any matter of form, prescribed by this
system, nor any departure from the forms given for proceeding under
it, shall render the proceeding void, unless it be so specially provi-
ded; or, unless the departure from the form has caused some injury
to the party complaining of it.
Art. 572. Where a particular provision is made in any part of this
system, contrary to a general provision, the particular provision must
be observed.
Art. 573. All offences which are created by the Code of Proce-
dure, or the Code of Reform and Prison Discipline, shall be tried in
the same manner with those which are created by the Code of Crimes
and Punishments.
Art. 574. Whenever a notice or interval of a certain number of
days is directed to be given or to elapse, three whole days, exclusive
of the two terms referred to, must intervene, unless the contrary be
expressed.
BOOK III.
CONTAINING THE FORMS TO BE USED IN ALL THE JUDICIAL PRO-
CEEDINGS PRESCRIBED OR AUTHORIZED BY THIS CODE.
TITLE I.
OF THE FORMS TO BE USED IN THE PROCEEDINGS AUTHORIZED BY THE FIRST
BOOK, TITLE FIRST, FOR THE PREVENTION OF OFFENCES.
CHAPTER I.
General provisions.
Art. 575. Where the forms given in this book are filled up, the
parts within brackets are to be changed according to the circum-
stances; the real names are to be substituted for the letters used to
represent them in the forms, and the real dates for the blanks or the
fictitious dates used in the forms.
Art. 576. The certificate of the attestation of the magistrate to affi-
davits, the seals to writs, and the signatures of parties, clerks and ma-
gistrates, are omitted in most of these forms. The cases in which
they are necessary, in practice, are either declared by the law on the
subject, or result from the nature of the instrument.
Art. 577. Where the beginning or conclusion of any form has been
given before, it is omitted in the subsequent forms of the same nature.
The part of the form omitted in the beginning of any precedent, is to
be supplied by copying the formal part that had before been given,
down to the recurrence of the word with which the new form begins.
Thus, in the precedents of an indictment, the formal part must be
copied in each case down to the word "did," with which word some
of the forms, given for the different officers, begin in the subsequent
precedents; or to the word "that," with which others begin. The
formal conclusion is supplied by "&c."
564
CODE OF PROCEDURE.
CHAPTER II.
1
Of the forms to be used in the proceedings under the third chapter
of the title and book aforesaid.
Art. 578. The honorary certificate, directed to be granted by the
article, shall be in the following form:
"State of Louisiana-certificate of merit.
"A. B. having [here insert the act with such circumstances as in
the opinion of the court rendered it worthy of recompense], the crim-
inal court of said state [reciting the style of the court] have, according
to the laws of the said state, caused this certificate to be made out,
under their seal, to record the merit of his conduct, and to have the
other effects provided for by law. Witness, J. T. judge of the said
court, this
in the year
day of
دو
Art. 579. The certificate directed by the
article, to entitle
the person giving information of an offence to the reward thereby
directed, shall be as follows:
"We certify, that A. B. gave the first information which led to
the conviction of C. D. of the offence of [here insert the description of
offence]; and that, pursuant to the directions of the Code of Criminal
Procedure, he is entitled to receive from the treasurer of the state,
out of the compensation fund, the sum of fifty dollars. Dated the
in the year
day of
""
Art. 580. The several proceedings for the prevention of offences by
the intervention of officers of justice, which are authorized by the
third chapter of the title and book mentioned in the title of this
chapter, shall be according to the following forms:
1. The form of an affidavit required by the first article of that chap-
ter:
"I, A. B., do hereby declare, that I do fear that C. D. intends to
commit an offence against my person [or property, designating which]
by [designating the act which is apprehended]; and that I have just
reason for this fear, because [here insert the circumstances which
cause the apprehension. ]"
2. Form of the warrant:
"To H. H. one of the constables," &c.
"Whereas, A. B. hath made oath before me, C. D. [designating
the office of the magistrate], that he has just reason to fear and does
fear, that E. F. intends to [here insert the nature of the offence]: You
are, therefore, ordered to arrest the said E. F., and bring him before
me to answer the said allegation, and to be dealt with according to
law. Given under my hand, this
year
وو
3. The form of the bond :
day of
in the
"We, E. F. and G. H., acknowledge ourselves bound in solido to
the state of Louisiana in the sum of
to be paid by
us, or our heirs, if the said C. D. shall commit any offence against
[the person] of A. B. within the term of one year."
CODE OF PROCEDURE.
565
4. The form of commitment, if the accused do not find security.
"To the sheriff of the parish, &c. By C. D. [one of the justices, &c.]
"Keep in safe custody, until he shall be discharged by law, E. F.
herewith delivered to you, charged, on the oath of A. B., with an
intent to [here insert the charge]. Witness my hand, this
day of
in the year
وو
Art. 581. Any one committed by virtue of such commitment, may
be brought up by order of the magistrate who committed him when-
ever he finds security, and on executing the bond aforesaid shall be
discharged.
5. Warrant for arrest, on the view of the magistrate, under the
article.
“To H. H. one of the constables," &c.
"Whereas, E. F. in the presence and view of me, C. D., one of the
justices [insert his style of office], did commit illegal violence on the
person of A. B.: You are, therefore, commanded to arrest the said
E. F., and bring him before me to answer for the said offence, and to
be dealt with according to law. Given under my hand this
of
in the year
6. Application for a summons, in case of an intended libel.
"To C. D. one of the justices," &c.
day
"A. B. complains that E. F. as he is informed and believes, is now
printing a libel against him, which he intends to publish [or that he has
written and intends to print, or continues to sell and circulate, some
such libel, or some such publication as is forbidden by the Penal Code,
as the case may be]; he therefore prays, that the said E. F. may be
summoned, for admonition, according to law."
7. Summons on the above complaint.
“To I. K. one of the constables," &c.
day of
"Summon E. F. to appear before me, [one of the justices, &c.] on
the
next, at
o'clock in the morning, at
my office, to hear the complaint of A. B. against him, for intending to
publish [or for continuing to circulate, &c., as the case may be] a libel
against him [or other publication forbidden by the Code of Crimes and
Punishments, as the case may be]. Witness my hand, this
day of
C. D."
Art. 582. If the person summoned do not appear, and the officer to
whom it was directed shall return, that it was duly served, such sum-
mons and return shall have the same effect as to the punishment, in
case of conviction, that the admonition would have had.
CHAPTER III.
Form of the proceeding authorized by the fourth chapter respecting
search warrants.
Art. 583. The forms to be used for proceedings authorized by this
chapter are as follows:
1. Affidavit for procuring a search warrant for stolen goods, or goods
taken on false pretences or fraud :
566
CODE OF PROCEDURE.
"A. B. being duly sworn before me, C. D. one of the justices, &c.
[insert the office of the magistrate], doth depose, that the following
property, viz. [describing it], the property of [insert the name of the
owner], has been stolen, [or has been taken by false pretences, or has
been forced and fraudulently appropriated, as the case may be], in the
parish of
; and that the deponent believes, that the said property
is concealed in the house of I. K., [or, as the case may be, in a par-
ticular chamber, or in a barn, or other place, describing it], in the said
parish; and he so believes because [here state the circumstances on which
the belief is founded.]
2. Affidavit for procuring a search warrant for seizing forged instru-
ments in writing, or counterfeit coin, or the instruments and materials
for making them.
"A. B. being duly sworn before me, C. D. [insert the magistrate's
office], doth depose, that he believes that certain forged bank notes [or
counterfeit coin, or instruments, or materials for making them, as the
case may be] are concealed in the house of [describing the place] with
the fraudulent intent of passing the same [if it be bank notes or coin]
or of [employing the said instruments or materials in committing the
crime of forgery or counterfeiting, as the case may be]; and he also
believes [state the circumstances on which he founds his belief.]
3. Affidavit for procuring a search warrant for arms and munitions
prepared for insurrection or riot.
"A. B. being duly sworn before me, C. D. [insert the magistrate's
office] doth depose, that he believes that certain arms [or munitions, as
the case may be] consisting of [describe of what kind the arms or
munitions are], are concealed in [describe the place]; and that they are
intended to be used for the purposes of a riot [or insurrection, as the
case may be], which he also believes certain persons have conspired to
make [or have actually made, if such be the case]; and that his reasons.
for believing as aforesaid are [insert the reasons for believing in the
insurrection, or riot, or the conspiracy, to effect them, as well as the
concealment of the arms for that purpose.]
4. Affidavit for a search warrant for some article, the production of
which may be necessary on a trial :
"A. B. being duly sworn, &c. [as before] doth depose, that on the
trial of E. F. now under examination, [or lately committed or bailed,
as the case may be], on an accusation of [state the offence] a certain
silver-mounted pistol [or any other article, describing it], will, as he
believes, be necessary to be produced, and that the same, as he believes,
is now in the house occupied by G. H. situate in [describing the place];
and that his reasons for believing that the production of the said article
will be necessary are [here state the circumstances. ]
5. Warrant to search for goods stolen, taken under false pretences,
or forced :
"To the sheriff of the parish.
[or to A. B. one of the constables
•]
of the parish of
"Whereas, affidavit hath this day been made before me, C. D. one of
the justices, &c. [insert the office of the magistrate] by A. B. that cer-
tain property belonging to was stolen [or obtained by false pre-
tences from him, or had been fraudulently appropriated, as the case
may be,] and that he had good reason to believe and did believe, that
the said property was concealed in the house of
situate in
CODE OF PROCEDURE.
567
[or other place, describing it]: You are therefore required, without
delay, to make search in the said house [or other place] in the day-
time for the said property; and if you find the same, or any part thereof,
that you bring the same, with the person in whose custody the same
was found, before me without delay, to be examined and dealt with
according to law. Given under my hand and seal, this
in the year
day of
6. Search warrant for seizing forged instruments in writing, or
counterfeit coin, or the instruments and materials for making them.
"To the Sheriff, &c.
"Whereas, an affidavit has been made, &c. [as in the preceding
form] that certain forged bank bills [or counterfeit coin, or instruments
or materials for making forged bills or counterfeit coin, as the case may
be, reciting the affidavit], are concealed, &c. [as in the affidavit, de-
scribing the place particularly], with the fraudulent intent of passing
the said bills or coin [or employing the said materials or instruments
in committing the crime of forgery or counterfeiting, as the same may
be stated in the affidavit]: You are therefore required," &c. as in the
last form.
7. Search warrant for seizing arms and munitions prepared for in-
surrection or riot.
“To the Sheriff, &c.
"Whereas, &c. [the direction and recital as in the preceding forms]
affidavit has been made before me, &c. by A. B. stating that he believes,
and has good reason to believe, there are certain arms [or munitions,
describing them as in the affidavit] are concealed in [describing the
place as in the affidavit], and that they are intended to be used for the
purposes of an insurrection, [or riot, as the case may be] which certain
persons have conspired to make [or have made] as he also believes,
and has good reason to believe: You are therefore required," &c. as in
the preceding forms.
TITLE II.
OF THE FORMS TO BE USED IN THE PROCEEDINGS AUTHORIZED BY THE FIRST
BOOK, TITLE SECOND, FOR SUPPRESSING PERMANENT OFFENCES.
CHAPTER I.
Forms of proceeding to be used for giving effect to the directions
for suppressing permanent offences against public tranquillity,
public safety, public health, public property, morals, and de-
cency, and reputation.
Art. 584. Affidavit of the existence of an unlawful assembly or riot :
"A. B. and C. D. of the parish of [New Orleans], being sworn say,
568
CODE OF PROCEDURE.
that E. F., G. H. and I. K. and others to the deponent unknown, to
the number of more than twenty, are now assembled in [the public
square of the city of New Orleans] with the intent to aid each other
in violently and illegally [rescuing from the sheriff one J. S. who has
been legally committed on an accusation of murder, which intent was
openly expressed by numbers of the said assembly in the presence of
these deponents."]
Art. 585. In case of a riot this clause is to be added, "and that the
said persons have begun to execute their purpose [by assaulting and
beating the officers of justice who have the custody of the said J. S."]
Art. 586. Proclamation and order of a magistrate for the dispersion
of an unlawful assembly or a riot.
The magistrate shall, according to the directions of the Penal Code,
display a white flag, which shall be carried either by him or by an offi-
cer of justice, or other person appointed by him. The flag bearer
shall then proclaim "Silence! while [F. T. judge of the criminal
court] speaks in the name of the law" The magistrate shall then
make his order in the following form: "In the name of the state of
Louisiana, and by virtue of the powers vested in me by law as [the
judge of the criminal court,] I order this assembly to disperse; and I
warn each of you, that by remaining he makes himself liable to im-
prisonment at hard labour for any riot that may be committed by him-
self or his associates, and to fine and imprisonment for not retiring in
half an hour after this warning, even if no other offence be committed;
and if any or other crime should be committed in the prosecution of
the illegal purpose for which you are assembled, all of you will incur
the guilt and the punishment. Again I command you, in the name of
the law and the state, to disperse.
""
Art. 587. All the consequences of not dispersing are incurred if the
magistrate is by violence prevented from making the proclamation, or
displaying his flag; or if he should not make the proclamation in the
form prescribed, provided (if not prevented by violence) he shall dis-
play the flag, cause his office to be known, and give the order to dis-
perse. But the magistrate is guilty of a neglect of duty who does not
pursue the forms above directed.
Art. 588. After making the proclamation and order, the magistrate
shall take notice of the precise time at which such order was given,
and as soon as possible shall make a minute thereof in writing, signed
by himself and other witnesses.
Art. 589. If the proclamation be made to those actually engaged in
a riot, the magistrate shall cause those to be arrested who shall perse-
vere in the unlawful act after the proclamation has been made.
Art. 590. If the proclamation be made to an unlawful assembly,
but before any riot has been committed, he shall arrest those who
remain in the said assembly after the expiration of the half-hour from
the time of the order to disperse, as well as those who before the ex-
piration of that time shall commit any act that amounts to a riot.
Art. 591. Application to procure an injunction against any trade,
or continuing any act or cause injurious to public health.
Such application must be made in the following form:
"To the [judge of the criminal court]:
"The petition of A. B., C. D. and E. F. inhabitants of [the Bayou
CODE OF PROCEDURE.
569
St John in the city of New Orleans], showeth, that G. H. of the
same place, hath lately been indicted in this court for [suffering the
blood which he uses in refining sugar to putrefy] in a manner inju-
rious to the health of the inhabitants in the vicinity; that notwith-
standing such indictment, the said G. H. continues the said practice.
to the great danger of your petitioners and others in the vicinity:
they therefore pray, that the said G. H. may be enjoined from contin-
uing the said unhealthy process.
""
Art. 592. Citation on the above petition to be served on the de-
fendant :
day of
"G. H. you are cited to appear before [the criminal court of the
state of Louisiana] on the
o'clock in the morning, to show cause, if any you
prayer of the petition, a copy whereof is annexed,
granted. Dated the
eighteen hundred and
day of
Art. 593. Injunction on the above petition:
"The state of Louisiana to G. H.
next, at ten
have, why the
should not be
in the year
"Whereas, an indictment hath been presented against you in the
criminal court, charging [that in carrying on the business of refining
sugar you suffer the blood used in that process, to putrefy] so as to
injure the health of persons residing in the vicinity; and whereas it
hath been represented to our said court, that notwithstanding such
indictment, you still continue the said [process] to the great injury
of the persons in the neighbourhood of your works: you are, there-
fore, commanded to desist from continuing such [mode of carrying on
the said business] as is complained of under the penalty of fine, im-
prisonment, and sequestration of your [works]. Witness, F. T.
judge of the said court, the
""
day of
in
the year
Art. 594. If it shall appear to the court that this injunction is wil-
fully disobeyed, they may order the works, or other cause of injury
to public health, to be sequestered until the trial of the indictment, or
until the defendant shall give security to obey the order of the court.
Art. 595. In all cases where any one shall wilfully disobey any
lawful writ of injunction, issued by a competent court in a criminal
cause, he may be fined not exceeding fifty dollars, and imprisoned
not exceeding ten days, by the court, on hearing, in a summary man-
ner, without the intervention of a jury.
Art. 596. Writ of sequestration for disobedience to the injunction.
"The state of Louisiana to the sheriff of [the parish of the city of
New Orleans:]
"You are commanded to take into your possession [the buildings
situate at the Bayou St Johns, in which G. H. now carries on the
business of refining sugar, and that after causing the putrid blood to be
removed therefrom], you safely keep the said [building] until the fur-
ther order of this court. Witness," &c.
Art. 597. The form hereinbefore prescribed shall be used in cases
of manufacturing or storing articles, dangerous from their explosive
nature to human life, except that in the petition the injunction and
the sequestration, the charge shall be according to fact of the manu-
facture carried on, or the article stored, and that it endangers the lives
3 W
570
CODE OF PROCEDURE.
of the inhabitants in the vicinity, instead of their health, as is stated in
the forms above prescribed.
Art. 598. Petition for the removal of a building or obstruction of
public property, held for the common use of all the inhabitants :
"To F. T. [judge of the criminal court.]
"A. B. complains that C. D. has lately erected a [house] which
permanently obstructs the free use of [a street called Lafayette-street,
in the city of New Orleans]; that the said [street] is public property,
held for the common use of all the citizens, and that the part thereof
on which the said [house] is erected has been in such common use
for twelve months next preceding the time of erecting the said [house],
of all which the said A. B. is ready to make proof, and he prays that
the said C. D. may be cited, and that the said obstruction may be re-
moved."
Art. 599. The citation shall be in the following form:
day of
"C. D. you are cited to appear before me, at [my dwelling-house in
the suburb St Mary,] on the
at ten o'clock in the
morning, to show cause, if any you have, why the prayer of the peti-
tion, a copy whereof is annexed, should not be granted. Dated the
day of
in the year
""
Art. 600. The order for removal shall be in the following form :
"By [F. T. judge of the criminal court.] To the sheriff of the parish
[of the city of New Orleans.]
"Whereas, complaint has been made to me that C. D. has lately erect-
ed a [house] which permanently obstructs the free use of a [street called
Lafayette-street, in the city of New Orleans]; that the said street is pub-
lic property, held for the common use of all the citizens; and that the
part thereof on which the said [house] is erected has been in such com-
mon use for twelve months next preceding the time of erecting such
[house]; all which allegations have been clearly proved, and the incon-
venience to the public being, in my opinion, so great from the obstruc-
tion aforesaid as to render it improper to wait the event of a trial for the
offence, I do therefore, by virtue of the powers vested in me as judge
of the court of the highest criminal jurisdiction in this district, com-
mand you, that you cause the said [house] to be removed, so that it
may no longer obstruct the said street."
Art. 601. Complaint of an intended libel, or of publication injurious
to morals and decency:
“To A. B. one of the justices of the peace for the parish of Plaque-
mine:
"C. D. of the said parish, complains that E. F. of the said parish,
hath written or printed a false and malicious libel concerning the depo-
nent, which he is continuing to sell or publish, [or has written a false
and malicious libel against the deponent, which he intends to publish,
as the case may be] [or that the said E. F. has prepared and intends to
publish an obscene print (or picture) or a written composition called,
as the case may be] which manifestly tends to corrupt the morals of
youth; all which the complainant has good reason to believe and does
believe; wherefore he prays, that the said E. F. may be cited before
you, and that he may receive the admonition in such case directed by
law."
Art. 602. Citation in the above complaint;
[E. F. of the parish of Plaquemine, ] you are hereby cited to ap-
CODE OF PROCEDURE.
571
day of
pear before me [A. B. one of the justices of the peace for the said par-
ish,] on the
at ten o'clock in the forenoon, to hear
such things as may be addressed to you in relation to a libel against
C. D. [or a publication contrary to morals and decency, as the case may
be]. Dated the
in the year
day of
22
Art. 603. Admonition on the above citation :
"E. F. affidavit having been made before me, that there is good rea-
son to believe that you intend to publish or sell a libel against C. D. of
this parish, [or as the case may be, a publication against decency, man-
ifestly tending to corrupt the morals of youth] or [that you have pre-
pared and intend to publish some work of that description,] it is made
my duty to admonish you, which I hereby do, that although no restraint
can be laid on the liberty secured to every one by the constitution,
"freely to speak, write, and print on any subject," yet the same con-
stitution makes you liable for the abuse of that liberty, and the laws have
empowered and directed me to warn you that if, after this admonition,
you should commit the offence that is apprehended, you will suffer the
highest punishment that can be inflicted, that is to say [if the apprehend-
ed offence be a libel purporting the accusation of a crime] imprison-
ment for twelve months and a fine of three thousand dollars; [if the
apprehended libel does not import the accusation of a crime, then say,
imprisonment for nine months and a fine of two hundred and fifty dol-
lars,] [and if the apprehended offence be one against decency, then say,
imprisonment for six months and a fine of one thousand dollars.]"
CHAPTER II.
Of the forms to be used in the suppression of permanent offences
against personal liberty.
Art. 604. The suppressive remedy for offences against personal lib-
erty is the writ of habeas corpus. The directions for obtaining and pro-
ceeding under that writ are minutely detailed in the first book of this
Code, title second, chapter seventh. The forms are herein given to pre-
serve uniformity in practice; but no part of such forms are essential
but such as are declared to be so in the chapter above referred to.
Art. 605. Petition for a writ of habeas corpus by the party imprison-
ed, where the imprisonment is under colour of judicial process, but
irregular in form:
"To J. L. [district judge of the state of Louisiana for the first dis-
trict.]
"The petition of A. B. of the city of New Orleans, showeth, that he
is imprisoned in the prison of the city of New Orleans, in the custody
of the sheriff of the said city, by virtue of [an order purporting to be a
commitment made by C. D. one of the justices of the peace for said
city,] a copy of which [order] is hereunto annexed, [or if the copy has
been refused to be given, say, a copy of which commitment is not here-
unto annexed, because on application to the keeper of the prison the
same was refused to be given]; and your petitioner is advised and be-
lieves, that his imprisonment, or under colour of the said [order], is
572
CODE OF PROCEDURE.
illegal. Your petitioner, therefore, prays, that a writ of habeas corpus,
directed to said sheriff or the keeper of the said prison, may be grant-
ed, ordering him forthwith to bring your petitioner before you, that he
may be discharged according to law."
Art. 606. When the petition is made by any other than the person
imprisoned, it may state the fact of imprisonment and illegality, accord-
ing to the best of his information and belief.
Art. 607. Petition when the imprisonment is by virtue of judicial
process, regular in form but illegally obtained, and where a third party
is interested in the discharge.
As in the last form to "in the custody of the sheriff of the said city,
by virtue of a writ purporting to be a writ [of capias ad satisfaciendum,
issuing out of the parish court for the parish of the city of New Orleans,
at the suit of C. D. to satisfy a judgment pretended to have been ob-
tained in the said court, for the sum of one thousand dollars; but in truth
no such judgment was ever entered, nor is there any judgment, order,
or decree, to authorize the said process.] Wherefore he prays, that
the said C. D. may be cited according to law, and that a writ of habeas
corpus be granted," &c.
Art. 60s. On the above petition the judge issuing the habeas corpus
shall indorse these words, the within named A. B. must be brought
up, notwithstanding the [execution] within mentioned," otherwise the
sheriff need only send up the [execution], as is provided by the third
section of the seventh chapter of this Code, above referred to.
Art. 609. Citation to the plaintiff at whose suit the execution men-
tioned in the preceding petition was taken out, conformably to the di-
rections in the said chapter, regulating proceedings on habeas cor-
pus.
"By J. L. district judge of the state of Louisiana for the first district.
To C. D. of the city of New Orleans.
"You are hereby cited to appear before me, at the court house of the
district court, at nine o'clock to-morrow morning, to show cause, if
any you have, why A. B. confined, illegally as is said, at your suit in
the prison of this city, should not be discharged on a writ of habeas
corpus. Dated," &c.
Art. 610. Petition where the imprisonment is not under colour of
any judicial process.
That he is illegally confined by J. W. [in the fort of Plaquemine,
in this district]; he therefore prays," &c.
Art. 611. Petition where the party is claimed to be held as a slave.
"That he is a free person, but is illegally held to service as a slave
by C. D. Therefore he prays, that a writ of habeas corpus, directed
to the said C. D., may issue, commanding him," &c. as in the preced-
ing form.
Art. 612. The form of the writ of habeas corpus is set forth in the
article of this code in the chapter relating to "the suppression.
of offences against personal liberty."
Art. 613. Proof of the service of a writ of habeas corpus when a
copy has been kept.
"A. B. being duly sworn, doth dispose, that on the
day
of
about the hour of ten before noon, he delivered to C.
D. the original writ of habeas corpus, of which a true copy is here-
unto annexed.”
CODE OF PROCEDURE.
573
2
Art. 614. Proof service where no copy has been kept.
As above. "That on the
day of
at about the
hour of ten in the forenoon, he did serve on C. D. a writ of habeas
corpus, allowed by J. L. district judge, directed to the said C. D. by
which he was ordered [forthwith] to produce A. B., said to be in his
custody, before the said judge, at the court room of the first district
court, in this city; that the said service was made by delivering the
said writ to the said C. D."
Art. 615. Affidavit in cases where the person to whom the writ is
directed refuses to receive it.
day of
As above. "That he offered the writ which is hereunto annexed,
on the
at about the hour of ten before
noon, to C. D. to whom the same is directed, but that he refused to re-
ceive the same, whereupon the deponent verbally informed the said
C. D. of the contents of the said writ."
Art. 616. Proof in cases where the person to whom the writ is di-
rected conceals himself, or refuses admittance to the person charged
with the service.
As above. "That he went to the dwelling house of C. D. to whom
the writ of habeas corpus, of which a copy is hereunto annexed, was
directed, with the said writ in his possession, but that he was refused
admittance into the said house, [or that having entered the said house
he sought for the said C. D. in order to serve the said writ, but that
the said C. D. was not there to be found, and the deponent believes that
he conceals himself to avoid the service thereof; whereupon the depo-
nent proclaimed aloud his business, and fixed up the said writ on the
outside of the said house, on the outer door thereof, where he left the
same]."
Art. 617. In this last case, if the deponent have kept no copy, he
must, instead of saying "a writ of habeas corpus of which a copy is
annexed," describe the same as in the form above prescribed for proof
of service when no copy was kept.
Art. 618. Form of a return when he to whom the writ is directed,
has not the person he is directed to produce in his custody, or under
his control.
"I, C. D., to whom the within writ is directed, do return, that I
have not now, nor within three days before the date of the said writ,
have not had the within named A. B. within my power, restraint, or
control.
(Signed)
"Sworn before,
"E. F. justice of the peace," &c.
"A. B.
Art. 619. Form when he had the custody or control of the party
within three days, but has transferred him to another.
I, C. D., to whom the within writ is directed, do return, that I
have not the within named A. B. now in my custody, or under my
restraint or control; but that on the
day of
[the said C. D. was delivered to me as a deserter from the first regi-
ment of United States infantry, by J. S. a sergeant in the first company
of said regiment, I being at that time commander of the fort of St
Phillips in this state, and that I afterwards, to wit, on the
day of
transferred the custody of the said A. B. to L. M. a
captain in the said regiment, before the issuing of the said writ, and
before I had any notice of an intent to apply for the same]."
574
CODE OF PROCEDURE.
Art. 620. Form when the party is in custody on judicial process.
"I, C. D., to whom the within writ is directed, do return, that in
obedience thereto I have the within named A. B. at the time and place
within mentioned in my custody, and that the cause of his detention is
a certain [order or commitment] which is annexed to this writ, to me
directed as [keeper of the prison of the city of New Orleans."]
Art. 621. Form of return when the applicant is held as a slave.
"I, C. D., [as above] and that the cause of his detention is this, that
he is a slave, legally acquired as my property, and I pray that his claim
to freedom may be inquired of and determined according to law."
Art. 622. Form of return when the party is too sick to be produced.
"I, C. D., to whom the within writ is directed, do in obedience
thereto return, that the said A. B. is detained in my custody by virtue
of [an order of commitment to me directed as keeper of the prison of
the city of New Orleans, which is hereunto annexed], and that I have
not produced the said A. B. because it could not be done without dan-
ger to his life from the sickness which he now suffers, as appears by
the testimony of the physician and witnesses hereunto annexed."
Art. 623. Certificate of physician.
"I. D. H., a physician regularly admitted to practice, certify, that I
have visited A. B. now in the custody of [the keeper of the prison at
New Orleans,] and found him suffering with a [bilious fever], and that,
in my opinion, he cannot be brought before the judge on the annexed
writ without danger of his life."
"We, I. K. and L. F. being duly sworn, do depose, that we have
seen the within named A. B. and believe, from the state of his health,
that he cannot be produced in obedience to this writ, without danger to
his life. In witness whereof, as well we the said witnesses as the said
A. B. have signed this deposition."
Art. 624. Form of a warrant to bring up the prisoner when the writ
of habeas corpus has not been obeyed.
"By J. L. [district judge of the first district court.]
To A. B.
[one of the constables of the city of New Orleans.]
"Whereas, a writ of habeas corpus was lately allowed by me, direct-
ed to C. D. of the city of New Orleans, directing him to bring before
me A. B. in his custody, as was said illegally detained, and the said
C. D. having disobeyed the said writ,-These are to command you, to
take the said A. B. out of the custody, or from under the restraint or
control of the said C. D. or of any person to whose custody he may
have transferred him, and to bring him before me without delay, to
abide such order as I may make in the case. Witness my hand, this
in the year
day of
Art. 625. Warrant to arrest the person to whom the habeas corpus
was directed, for not bringing up the prisoner.
"2
Direction and recital as in the preceding form.
"These are to com-
mand you, that you arrest the said C. D. and bring him in safe custody
before me without delay, to be dealt with for his said default according
to law.
Witness," &c.
Art. 626. Commitment, where the party on being brought before the
judge, on the preceding warrant, refuses to return the writ or to pro-
duce the prisoner.
"By J. L. district judge, &c. To [the keeper of the prison of the
city of New Orleans. 1
"Receive in your custody C. D. herewith sent to you for refusing
code of procedure.
575
obedience to a writ of habeas corpus, by me issued, directing him to
produce A. B. in his custody as was alleged, and him the said C. D.
safely keep until discharged by due course of law. Witness," &c.
Art. 627. Petition for a warrant to bring up the prisoner when there
is danger of his being carried out of the state, or of irreparable injury,
and to arrest the person in whose custody he is.
"To J. L. district judge, &c.
"The petition of A. B. showeth, that C. D. is now in the custody or
power of one J. S. [who has put him on board of a vessel called the
Tartar, lying at the levee of this city, now ready to sail ; and that the
said J. S. intends, as the deponent is informed and verily believes, for-
cibly to convey the said C. D. against his will and without any legal
authority, out of this state ;] and the deponent verily believes, that if a
writ of habeas corpus issue it will be disobeyed, and the said C. D. will,
notwithstanding such writ, be conveyed out of the state, [or suffer ir-
reparable injury, as the case may be ;] and the petitioner shows, that the
said J. S. hath knowingly and illegally deprived the said C. D. of his
liberty, with intent to [convey him out of the state :] wherefore he
prays, that a warrant may issue to bring before you the said C. D. to be
discharged according to law, and to arrest the said J. S. to answer for the
said offence.
"Sworn," &c.
Art. 628. Warrant on the above petition.
"By J. L. &c. To the sheriff, &c.
"Whereas proof has been made before me, that [one C. D. is illegal-
ly confined on board a vessel called the Tartar, lying at the levee of
this city, and by one J. S. who intends illegally and forcibly to convey
the said C. D. against his will out of this state, before he can be reliev-
ed by the due course of law:] these are, therefore, to command you to
take the said C. D. out of the custody of the said J. S., or of any other
person to whose custody he may have transferred him, and to bring him
before me, [at the court-room of the first district court,] without delay,
to abide such order as I may make in the case: and you are also com-
manded to arrest the said J. S. and bring him before me, without delay,
[at the said court-room,] to answer for the said offence. Witness," &c.
Art. 629. When the petition does not expressly charge, that the per-
son in whose custody the prisoner is has committed an offence, in the
arrest and detention of the person detained, then the part of the warrant
ordering his arrest is to be omitted.
Art. 630. Return when the party ordered to be produced has died in
imprisonment, with record of the inquest.
"I, C. D., to whom the within writ is directed, do in obedience there-
to return, that the within named A. B. was committed to my custody
[as keeper of the prison of the city of New Orleans] on the day
of
last, by virtue of [a warrant of commitment] which is here-
unto annexed, but that I cannot produce him, as I am directed, because
on the
last he departed this life [by the visitation of
day of
God,] as appears by the proceedings herewith returned.”
Annex the inquest.
Art. 631. Notice to the coroner of the death of the prisoner.
"To the coroner of the parish of New Orleans.
"Please to take notice, that last night, about the hour of twelve, C. D.
576
CODE OF PROCEDURE.
a prisoner, confined in the prison under my charge, departed this life,
that his body now remains in the said prison in the situation in which
he died, and that I request you will summon a jury of inquest to perform
the duties in such case required by law."
Art. 632. The summons for the jury and the inquest shall be in the
form herein before prescribed for inquests on dead bodies.
Art. 633. Discharge when no sufficient cause of detention is shown
by the return.
"By J. L. judge of the district court, &c. To the keeper of the pri-
son of the parish of New-Orleans.
"Discharge out of your custody C. D. of the said city, if detained for
no other cause than that shown by your return to the writ of habeas cor-
pus, allowed by me on the
last, and for your so do-
day of
Dated the
ing this shall be your sufficient warrant.
in the year
""
day of
Art. 634. Order to remand when sufficient cause of detention is
shown.
"To the keeper of the prison, &c.
"C. D. brought before me on a writ of habeas corpus, dated the
day of
instant, is remanded to your custody, the cause shown by
you, in your return to the said writ, being sufficient in law for his de-
tention.' 99
TITLE III.
OF THE FORM TO BE USED IN THE PROCEEDING AUTHORISED BY THE FIRST BOOK,
TITLE THIRD, FOR CALLING FOR AND EMPLOYING MILITARY FORCE.
ONLY CHAPTER.
Forms of information and requisition.
Art. 635. Information of the existence of a riot or insurrection.
"To J. L. district judge, and I. K. and L. M. justices of the peace.
❝A. B. and C. D. inhabitants of the city of New Orleans, being duly
sworn, say, that a number of men, consisting of more than twenty, [that
is to say, one hundred and more,] according to the best estimate the de-
ponent can make of their numbers, are now assembled [in Chartres-street
in this city, many of them armed with swords and pistols, and others
with clubs, and bricks, and other missiles, with the intent, as avowed by
many of them, to break into the prison of the said city in order to libe-
rate the persons legally confined therein; that they have already begun
to execute their threats by breaking the outer door of the said prison,]
and that they have refused to disperse, although they were ordered so to
do by proclamation, solemnly made in the manner directed by law by
CODE OF PROCEDURE.
577
a magistrate; and the deponent further says, that the said rioters cannot
be arrested or dispersed by the ordinary form of civil authority, such
arrest having been attempted by the officers of justice, who were always
resisted by force and with deadly weapons, [and some of them wound-
ed and others killed in the attempt."]
Art. 636. Application of the judge and other magistrates to the go-
vernor for the employment of a military force.
"To his excellency H. J. governor of the state of Louisiana.
"We, J. L., judge of the district court, and I. K. and L. M., justices
of the peace for the city of New Orleans, being convinced by the affi-
davits of two inhabitants of this state, that a riot has taken place in the
parish [of the city of New Orleans,] where they reside, and that the
persons engaged therein cannot be arrested or dispersed by the ordi-
nary force of civil authority; all which, as well as the object of the said
riot, appears by the affidavit aforesaid, which is hereunto annexed and
to which we refer : we therefore request, that you will be pleased to or-
der a military force of at least two hundred men, to repair to the place
where the said rioters are assembled, and to act under our direction, ac-
cording to law."
TITLE IV.
OF THE FORMS USED IN THE PROCEEDINGS AUTHORIZED IN THE SECOND BOOK,
FOR PROSECUTING OFFENCES.
CHAPTER I.
Special forms of complaints, accusations, citations, and warrants
of arrest.
day of
Art. 637. Form of a complaint where the complainant is not suffi-
ciently acquainted with the circumstances to make oath of the fact.
"Be it remembered, that on this
before me, P. B., associate judge of the city court of the city of New
Orleans, personally appeared A. B. of the said city, who made com-
plaint, that [his store, situate in Royal-street, was broken open last
night between the hours of ten and twelve, and that ten pieces of Irish
linen were stolen and carried away] by some person or persons to him
unknown, but that he believes [his opposite neighbour C. D.] can
give testimony that may designate the offenders.
"Sworn this day before me.
دو
(Signed)
"A. B.
Art. 638. Citation for witnesses to appear before the magistrate.
"Mr C. D., you are commanded to appear forthwith before me, [G.
P., one of the associate judges of the city court of the city of New
3 X
578
CODE OF PROCEDURE.
Orleans, at my office in the city-hall,] to testify what you know rela-
tive to a complaint made by A. B., of [house-breaking]; and hereof
fail not under the penalties imposed by law of fine, imprisonment, and
constraint. Given under my hands, this
in the year
Art. 639. Return of the service.
""
day of
"I, H. R., one of the constables of the city of New Orleans, certify,
on my oath of office, that I did on this day deliver a copy of the
within citation to C. D. therein named, about the hour of ten in the
morning."
Art. 640. If the witness does not appear according to the citation,
the magistrate is authorized to impose a fine not exceeding five dollars,
and to issue a warrant of attachment to constrain his appearance; and
if he appear and refuse to give testimony, he may commit him to pri-
son until he shall submit to be examined.
Art. 641. Warrant of attachment to compel the appearance of a
witness before the magistrate.
66
By G. P., associate judge of the city court of New Orleans. To
any officer of justice of the said city:
"You are commanded to take into your custody C. D., and bring
him forthwith before me, that he may be examined as a witness in the
complaint of A. B. entered before me of the [crime of house-breaking];
and for so doing this shall be your warrant. Witness my hand, this
in the year
day of
وو
Art. 642. Complaint by a person incapable of giving testimony.
"Be it remembered, that on this
day of
before
me, G. P., one of the associate judges of the city of New Orleans, ap-
peared [Robert, a mulatto slave, late belonging to J. S. deceased], who
declared, that last night, at about eleven o'clock, two white men, who
were at work on the plantation of the said J. S., entered his chamber,
when he was in bed, and with an axe gave him several mortal wounds,
of which he soon after died; that he, the appearer, came into the
chamber and saw the last blow given, immediately after which the
said persons fled; that their names were G. H. and I. K.—the first a
very tall spare man, about thirty years of age-and the other short,
and about the age of sixty; that a free mulatto man, named John
Clark, also saw the stroke given, and endeavoured, with the deponent,
to arrest the murderers, but that they could not effect it; and that the
said John Clark refused to accompany this appearer to make com-
plaint.”
day of
in
Art. 643. Ex officio complaint by the public prosecutor.
"Be it remembered, that on the
the year
before me, J. P. &c. came J. P., attor-
ney-general of the state, who gave me to understand, that he had
reason to believe that [ A. B. and C. D. would, if examined, prove
that the offence of giving and receiving a challenge to fight a duel had
been lately committed by E. F. and G. H. of the city of New Or-
leans, respectively]; he therefore required, that a citation should be
issued to the said A. B. and C. D. to appear and testify what they
know in the premises."
Art. 644. Form of an accusation where the defendant's name is not
known.
"Be it remembered, that on the
day of
in the
CODE OF PROCEDURE.
579
year
, before me, G. P., one of the justices of the peace,
&c. personally appeared A. B. of the said city, who on his oath de-
clared, that on [this day, at nine o'clock in the morning, he was
attacked in the high road in this parish, and by violence was robbed
of ten dollars in silver and a gold watch, which were taken from his
person by a man unknown to the deponent, with red hair, and a large
scar over his left eye, marked with the small pox, and appearing to
be about six feet high, and dressed in a sailor's jacket and trousers."]
CHAPTER II.
Forms of proceeding in offences against the sovereign power of the
state, from the complaint to the indictment; but applicable in
the formal parts to the other offences mentioned in this title.
Art. 645. Form of an accusation of sedition.
"Be it remembered, [as in the above form], who on his oath de-
clared, that J. S. [of the parish of St Mary's, now in this city, hath
enlisted in this city more than one hundred men, and arrayed and
furnished them with arms], for the purpose of subverting and chang-
ing the constitution of the state by force of arms, [so as to abolish the
senate and make other changes in the said constitution; that the de-
ponent was applied to by the said J. S. to enlist for the purpose
aforesaid, and saw him enlist ten other persons, to whom he gave arms
in the presence of the deponent."]
Art. 646. Form of complaint for exciting sedition by a writing.
"That J. S. of this city has confessed himself as the author and
publisher of a writing, published in handbills in this city on or about
the
day of
last, a copy of which is hereunto
annexed, by which he excites the people of this city to resist, by force,
the execution of a constitutional law of the state, that is to say, [to
resist the execution of an act imposing a tax on the real estate in this
city, passed the
day of
ייך.
Art. 647. Complaint for exciting insurrection, by joining a meet-
ing of slaves with design to promote.
day of
"That J. S. on the
was present at a
meeting of slaves held in this city, at which meeting an insurrection
of the slaves against the free inhabitants of this state was planned,
with design to promote such insurrection; that the deponent was con-
cealed and heard the said J. S. persuade the said slaves then present
to attempt such insurrection by [seizing the arms in the city and the
powder-magazine on the other side of the river."]
Art. 648. Complaint for designedly using language calculated to
make the slaves discontented with their state.
day of
"That J. S. in a discourse addressed himself to a number of
slaves assembled in the street of the Esplanade, on Sunday, the
last, in the hearing of the deponent,
and used the following words, or words to the same effect-Poor
fellows! you serve hard masters in this country-you can never know
580
CODE OF PROCEDURE.
the blessings of liberty-your life is a life of misery'-with intent to
render the said slaves discontented with their state of slavery."
Art. 649. Warrant of arrest in sedition, on the above accusation.
'By G. P. one of the associate judges of the city court of New
Orleans. To the sheriff of the said city.
"You are commanded forthwith to arrest, and bring before me, J. S.,
of the parish of St. Marys, charged on oath with sedition in enlisting
men and furnishing arms, for the purpose of subverting the constitution
of the state by force-that he may be examined and dealt with accord-
ing to law. Given under my hand, the day of
year
""
Art. 650. Examination of the prisoner.
"Be it remembered, that on the
year
day of
in the
in the
J. S. being brought before me, on my warrant, issued
on the complaint of A. B. on a charge of [sedition in attempting to
subvert the constitution of the state by force of arms,] I did, according
to law, inform him of the nature of the accusation against him, and
read to him the examinations of the witnesses which had then been
taken; who, that is to say, I. K. and H. H., were at his request sum-
moned and were cross examined by him, as appears by the said exam-
inations hereunto annexed; and I did then inform him, that although he
was at liberty to answer the questions I was about to put to him in
what manner he thought proper, or not answer them at all, yet a depar-
ture from the truth, or a refusal to answer without assigning a sufficient
reason, must operate as a circumstance against him as well on the ques-
tion of commitment as of his guilt or innocence on the trial.
put to him the following interrogatories:
1. What is your name and age?
I then
To which he answered, ['My name is J. S. and I am twenty-five
years of age.]'
2. Where were you born?
To which he answered, [' in the city of New Orleans. ]'
3. Where do you reside, and how long have you resided there ?
[Insert answer.]
4. What is your business or profession?
[Insert answer.]
5. Do you know the persons who have been sworn as witnesses on
the part of the accusation, or any, and which of them, and how long
have you known them?
To which he answered, &c.
6. Where were you at the time the act of which you are accused is
stated by the witnesses to have taken place?
To which he answered, ['I was at the town of Natchez.]'
7. Give any explanation you may think proper of the circumstances
appearing on the testimony against you, and state any facts that you
think will tend to your exculpation.
To which he said, [state the answers of the defendant.]
G. P. Judge," &c.
Art. 651. If, after examination and hearing evidence, the magistrate
shall think there is not reasonable ground for committing the defendant,
he shall write on the warrant, immediately after the return, "Let the
within named J. S. be discharged, the evidence, on examination,
not being sufficient for commitment," and shall then sign the same.
CODE OF PROCEDURE.
581
Art. 652. Commitment when the evidence warrants it.
By G. P., one of the associate judges of the city of New Orleans.
To the keeper of the prison of the city of New Orleans.
"Receive into your custody, J. S. herewith delivered to you,
charged, on oath before me, [with the crime of sedition, by enlisting
men and furnishing them with arms for the purpose of subverting the
constitution of this state by force of arms;] and him safely keep until
he shall be legally discharged. Witness my hand, this
day of
in the year
""
Art. 653. When the offence is bailable of right, or the proof in a case
not bailable of right, is not evident, nor the presumption strong, the de-
fendant must be bailed, if he offer good security; which is done in the
following form:
the sum of
on the
"We, J. S. as principal, and G. P. and I. D. as securities, do ac-
knowledge that we are indebted, in solido, to the state of Louisiana in
to be paid if the said J. S. should not appear
at the next [criminal court,] to be held at [the city of New Orleans,]
day of
next, to answer those things that
shall be objected to him, and particularly to a charge of [sedition]
whereof he is accused, and to abide the orders of such court; but if he
should so appear and abide, then this recognizance to be void.
ness our hands, this
in the year
day of
Wit-
""
Art. 654. The witnesses are also to enter into recognizance in the
following form:
na in the sum of
"I, A. B., acknowledge that I am indebted to the state of Louisia-
to be paid if I should not appear at the
next [criminal court,] to be held in the city of New Orleans, on the
day of
next, to give testimony in an accusation
against J. S. for sedition, and to abide the order of the court; but if I
so appear and abide, this recognizance to be void. Witness my hand,
in the year
this
day of
وو
Art. 655. If any witness should refuse to sign such recognizance, he
may be committed by the magistrate in the following form:
،،
By G. P. &c. [as above.] To the keeper, &c. [as above.]
"Receive in your custody, A. B. herewith delivered to you, he hav-
ing refused to enter into recognizance to appear and give testimony
[against J. S. on a charge of sedition]; and him safely keep until he
shall enter into such recognizance before me, or some other magistrate,
or shall be otherwise released by law. Witness," &c.
Art. 656. If any one shall make oath, that another is a material
witness on behalf of the prosecution in a case of CRIME, and that there
is good reason to believe that he intends to depart the state, or other-
wise to avoid attendance on the trial, the magistrate may direct him to
find security to be recognized with him for his appearance to testify;
and on his refusal, or inability to do so, may commit him by an order
in the form of that prescribed by the last article, altering only the cause
of commitment according to the circumstances of the case.
Art. 657. Any one committed under the last article, for inability to
find security, shall receive out of the recompense fund, on the warrant
of the judge, a compensation for the time he is imprisoned, to be cal-
culated according to the rules established for compensation to persons
acquitted.
Art. 658. The forms and the provisions of the ten last preceding
582
CODE OF PROCEDURE.
articles apply to all prosecutions, (changing the description of the of-
fence where it occurs in any of the said forms).
Art. 659. Form of indictment for sedition.
The beginning and conclusion shall be according to the form prescrib-
ed in the chapter of this code, entitled "Of indictments and informa-
tions."
The charge in this offence shall be "did [design and attempt to sub-
vert the constitution of this state by force of arms; and did, on the
day and year and at the place aforesaid, enlist one hundred men, to the
jurors unknown, and furnish them with arms, for the purpose of chang-
ing and subverting the constitution by force of arms,” &c.]
Art. 660. Another charge for the same.
"Did design and attempt, by force of arms, to dismember the
state by [forming a government, in defiance of the authority of the
state, in that part of the same lying west of the Mississippi river, and
for that purpose, on the day and year and at the place aforesaid, collect-
ed an assemblage of men armed and arrayed,] with the intent of car-
rying such design into effect by force of arms, and so the jurors say,"
&c.
Art. 661. The form of commitment on the accusation for exciting
the people to resist the execution of the laws or commit sedition, is the
same as that given above for sedition, except the charge, which is
"charged on oath, before me, of having published a writing exciting
the people of the city of New Orleans to [resist the legal execution of a
constitutional law of this state for the levying a tax in the said city];
or, [to dismember the state by force of arms]; or, [to subvert the con-
stitution of the state by force of arms."]
Art. 662. The form of examination, summons, and proceedings
against witnesses, and recognizance, are the same, for this offence, and
for the offences hereafter mentioned in this chapter, as those before
contained in this chapter, changing only the names and description of
the offences where they occur.
Art. 663. Form of the charge in the indictment for exciting the
people to commit sedition.
in the year
C
The formal parts are the same in all cases.
"That J. S. on the
day of
, at the parish of New Orleans,
did excite the people of the city of New Orleans to resist, by force, the
legal execution of a constitutional law of this state, entitled, an act for
levying a tax on the real property in the city of New Orleans,' by a
certain writing printed and published by him, of which the following
is a copy, [insert the particulars]; contrary," &c.
6
Art. 664. When the charge is of a verbal excitement, instead of "by
a certain writing," in the indictment insert [" by using these express-
ions, addressed to a number of inhabitants of the said city assembled to
prepare a petition against the said tax, We are fools to think of pe-
titioning. Let us do ourselves justice. Take arms and put any offi-
cer to death who will attempt to levy the tax. I will be the first 10
set the example.' Thereby verbally counselling and exciting the peo-
ple of the city of New Orleans, a part of the people of the state, to
resist the legal execution of the said constitutional law]; contrary,'
&c. And in the commitment, instead of the words "having published
a writing," &c. insert "having used a verbal discourse," &c.
Art. 665. Commitments for offences under the chapter in the Code
of Crimes and Punishments, relating to Exciting Insurrection."
“
CODE OF PROCEDURE.
583
"Charged on oath, before me, with having [aided in an insur-
rection of the slaves against the free inhabitants of this state], or [hav-
ing joined a secret assembly of slaves, in which an insurrection of the
slaves against the free inhabitants of this state was planned; with de-
sign to promote such insurrection]; or, [having persuaded and excited
the slaves to attempt an insurrection against the free inhabitants of this
state]; or, [having used language calculated to make the slaves discon-
tented with their state, with design to promote such discontent]; con-
trary," &c.
Art. 666. Charge in the indictment for offences mentioned in the
last article.
"Did [aid in an insurrection of slaves against the free inhabi-
tants of this state, by providing the said slaves with arms and ammu-
nition to forward the purposes of the said insurrection]; or, [did join
a secret assembly of slaves, held in the parish aforesaid, in which as-
sembly an insurrection of slaves against the free inhabitants of this
state was planned, with design to promote the same]; or, [did excite
and persuade certain slaves in the said parish, to the jurors unknown,
to attempt an insurrection against the free inhabitants of this state]; or,
[did use language to certain slaves, to the jurors unknown, calculated
to make them discontented with their state, by saying to them, 'Poor
fellows,' &c. or words to that effect, [as in the affidavit], with design
to promote such discontent."]
CHAPTER III.
Of the forms of complaint, warrant of arrest, commitment, and
indictment, on prosecution for offences against the legislative
power.
Art. 667. Complaint for preventing the house of assembly from
meeting, &c.
"Be it remembered, &c. [as in the preceding forms of complaint]
that A. B. [on the first day of February now last past, at nine o'clock
in the morning, came to the government-house of the state, situate in
the city of New Orleans, followed by a guard of soldiers, and placed a
soldier at each door of the chambers usually occupied by the house of
representatives of the said state, and gave orders to such soldier not to
permit any one to pass into the said chamber; and this deponent fur-
ther saith, that the house of representatives had adjourned on the twen-
ty-ninth day of January last to meet on the said first day of February,
at ten o'clock in the morning; and that this deponent being a member
of the said house, as well as a majority of the members thereof, pre-
sented themselves about the said hour to enter into the said chamber,
but that they were by force of arms prevented by the said soldiers
under the command of the said J. S., and that the said house of repre-
sentatives did not and could not meet that day."
Art. 668. In like manner when the complaint is of any of the
offences created by the third title of the second book of the Code of
Crimes and Punishments, relating to "Offences against the legislative
powers," state the circumstances thereof in the complaint particularly,
584
CODE OF PROCEDURE.
Art. 669. Form of charge in the warrant of arrest on the above com-
plaint.
""
Charged on oath, before me, with [having designedly and by
force prevented the house of representatives of this state from meet-
ing."
Art. 670. The charge in the commitment for this offence, is the same
as that directed for the warrant of arrest.
Art. 671. Charge in the indictment.
"[Did designedly and by force prevent the house of repre-
sentatives, being one of the houses composing the general assembly of
this state, from meeting]; or according to the fact stated in the com-
plaint, [did with intent to prevent the meeting of the house of repre-
sentatives of this state, being one of the houses composing the general
assembly of this state, by the use of personal violence offered to A. B.,
C. D. and E. F., members of the said house of representatives, pre-
vent them from attending the said house]; or, [did by force and the
threats thereof force the senate] [or the house of representatives], being
one of the branches of the general assembly of the state of Louisiana,
then and there in session, to adjourn [or disperse], or [to pass a law,
entitled an act, &c.] giving the title; or [to reject an act, entitled an
act, &c. which they constitutionally might have passed]; or, [did
threaten A. B. then a member of the house of representatives, that he,
the said J. S., would beat and otherwise ill treat him, unless he voted
for the passage of a bill then before the said house, entitled an act, &c.
with intent to influence his official conduct as a member of the said
house of representatives]; or, [did make an assault upon A. B. late a
member of the house of representatives, and did beat and ill treat him
in consequence of the conduct of the said A. B. while he was a mem-
ber of the said house]; or [did offer to bribe A. B. then a member of
the house of representatives of this state, by promising that if the said
A. B. would vote for the passage of a certain law then under conside-
ration in the said house, entitled "an act for incorporating an insurance
company called the Safety Company," he the said A. B. should have
ten shares in the stock of the said company]; or, [did bribe A. B. a
member of the house of representatives of this state, by transferring to
him ten shares in the stock of an insurance company called the Safety
Company, as an inducement to the said A. B. to vote for an act then
before the said house for continuing the charter of the said company];
or, [did offer to one C. D. the sum of one thousand dollars, (or the right
to subscribe ten shares in a certain bank, called the Fog Bank, when
the said bank should be incorporated), for the purpose of securing his,
the said C. D.'s interest with the general assembly, or with some mem-
bers thereof, in order to procure an act incorporating the said bank];
or, [that the said J. S. on the
day of
in the year
of
at the parish of New Orleans, did receive from A. B. the sum
or the promise of ten shares in the Fog Bank, as a
compensation for exerting his influence with the general assembly to
pass an act incorporating the said bank]; or, [that A. B. being a mem-
ber of the house of representatives of the state of Louisiana, did on the
day of
at the city of New Or-
leans, receive from J. S. a transfer of ten shares in a certain bank called
the Specie Bank, as the consideration for a promise then and there
made by him the said A. B. to vote for the passage of a law then pend-
ing before the said house, entitled an act, &c.] contrary to the laws," &c.
in the year
CODE OF PROCEDURE.
585
CHAPTER IV.
Forms for prosecution of offences against the executive power.
Art. 672. Complaint against officers.
"To A. B. justice of the peace, &c.
in the year
"C. D. being duly sworn says, [that E. F. lately appointed to the
executive office of inspector of flour in the city of New Orleans, on the
day of
, at the city of New Orleans,
performed an official act by inspecting and marking one hundred bar-
rels of flour for G. H. of the said city, merchant, he the said E. F. not
having then taken the oath of office required by law."]
'Sworn," &c.
Art. 673. Citation to E. F.
day of
"You are cited to appear before me A. B. justice of the peace, &c.
on the
next, at ten o'clock in the morning, to
answer to a complaint entered against you for having, as inspector of
flour for the city of New Orleans, inspected and marked one hundred
barrels of flour, before you had taken the oath of office required by law."
Art. 674. Charges in indictments for offences under this title.
"Did offer the sum of one hundred dollars to A. B. register of
mortgages, to induce him to give a certificate that a certain parcel of
land, belonging to him the said
was free from incumbrance,
when, in fact, the same was incumbered to a large amount."
"
"Did by threats of violence to the person of A. B. [one of the
constables of the city of New Orleans,] force him [to make an arrest
of one A. B. without any warrant or other legal authority," &c.]
"Did attempt to force," [as in the preceding form.]
"Did by force resist and attempt to prevent A. B. [a notary
public, from entering on his minutes an act of sale legally made by
İ. K. to L. M." describing it.]
"Did, he being then a [notary public], receive the sum of [one
hundred dollars] from A. B. as a bribe for [making an entry in the
register of his office of a sale made to him the said A. B. by C. D.
a date prior to the true time of recording the same."
!
as of
"Did, he being then legally appointed and exercising the office
[of inspector of tobacco], extort and receive from one A. B. the sum of
ten dollars for inspecting five hogsheads of tobacco], being more than
is allowed by law for performing such service]; or [for doing any act
(describing it) which he was by law obliged to perform, and for which
no remuneration is given by law]-that he did extort and receive ten
dollars when, in fact, he had not made such inspection; or [did receive
the sum of ten dollars for inspecting five hogsheads of tobacco], being
more than the sum allowed by law for that service, which were volun-
tarily given to him by one A. B. for [making such inspection."]
"Did receive [the sum of ten dollars] from one A. B. for re-
fraining from [condemning ten hogsheads of tobacco], which he was
not authorized by law to [condemn], and which sum the law did not
authorize him to receive."
3 Y
586
CODE OF PROCEDURE.
"Being an executive officer, to wit, a notary for the city of New
Orleans, he negligently [or intentionally, as the case may be] omitted.
[to enter on his register a certain act of sale, under private signature
made, &c. (describing it) which was acknowledged and left with him
for that purpose], by which omission such an injury accrued to the said
as would entitle him to a civil action against the said E. F."
"Being [sheriff of the city and parish of
] did, under
pretence of performing the duties of his office, [arrest one A. B. and
keep him in prison from the said day until the
same month], he the said E. F. falsely pretending that he had a [writ
or other process for arresting and detaining the said A. B."]
day of the
CHAPTER V.
Forms relating to offences against the judiciary power.
Art. 675. Form of information against a judge or juror for receiving
a bribe.
day of
"That J. S. had a cause pending in the
court of this parish,
against the deponent, which was tried by [the court or a jury, as the
case may be], and that the said J. S. on the
, during
the pendency of the said suit, gave to A. B. [the judge of the said court,
or a juror summoned to try the said cause] a promise in writing to pay
to the said A. B. the sum of one thousand dollars when he the said J. S.
should obtain judgment (or a verdict) in the said cause]; which written
promise the said A. B. then and there received, and did promise to
give a judgment (or verdict) for the said J. S. against the deponent."
Art. 676. Commitment thereon.
"Charged on oath with having, as judge of or as juror,
received a bribe from one J. S. in a suit between him and one C. D."
Art. 677. Indictment.
“That A. B. being appointed to the office of [parish judge of
the parish of L.] and exercising the duties of that office, did on the
day of
in the year
, at the parish aforesaid, [receive
from one J. S., who then had a suit pending undetermined in the said
court, a written promise to pay to him the said judge the sum of
dollars in case the said suit should be determined in favour of the said
J. S.] as a bribe to influence the official conduct of him the said A. B.”
Art. 678. Complaint for corrupt or malicious conduct, not amount-
ing to bribery.
day of
in
"That A. B. being appointed [parish judge of the parish of L.]
and exercising the duties of that office, on the
the year
, at the said parish of L. with design to injure this depo-
nent, and maliciously to have him declared an insolvent debtor, and by
a forced surrender to deprive him of the possession of his property, did
persuade one C. D. of the said parish, à creditor of the deponent, to
present a petition for a forced surrender against the deponent, to him
the said C. D., alleging in such petition that the deponent had suffered
his notes to be protested, and had committed other acts of bankruptcy,
which petition the said C. D. did present, but, although he did not
CODE OF PROCEDURE.
587
}
make oath to the truth of such petition, or give any other proof thereon,
the said A. B., under colour of his office, ordered a provisional seizure
to be made of the deponent's property, and other proceedings to be had
as in case of a forced surrender against him."
Art. 679. The same transaction may be stated to be corruptly done,
alleging the motive instead of a desire to injure, to be that of securing
some emolument or advantage to himself, [describing it], or to another,
(by giving him the management of the estate at Syndic, or some other
means.)
Art. 680. Warrant and commitment.
66
Charged on oath, with having officially as parish judge [or
maliciously granted an order of seizure, as in case of a forced sur-
render, against C. D."
Art. 681. Indictment.
in the year
2
"That A. B. being appointed to the office of [parish judge of
the parish of L.] and exercising the duties of that office, on the
day of
at the said parish of L., did [corruptly,
for the purpose of securing emolument to himself, or to another, stating
what emolument, as the case may be], or [maliciously, for the purpose
of injuring one C. D., grant under colour of his office, but in a manner
unauthorized by law, an order of seizure, as in a forced surrender,
against one C. Ď."
Art. 682. Complaint of an offer to bribe.
"That the deponent is, and since the
day of
2
last,
in the
has been clerk of the parish court of the parish of L., and that C. D. of
the said parish, on the
day of
in the year
parish aforesaid, offered to the deponent that if the deponent would
permit him the said C. D. to alter a certain record of a judgment ob-
tained in the said court, and then in the official custody of the deponent,
[describing it,] by erasing the word "hundred," and inserting the
word thousand" instead thereof, he would give to the deponent the
sum of three hundred dollars, which the deponent refused to do.”
Art. 683. Warrant of arrest and commitment.
——❝ Charged on oath, with having offered to bribe A. B. clerk
of the parish court of the parish of L.'
Art. 684. Indictment.
""
That one A. B. having been before the
in the year
,
day of
legally appointed clerk of the
parish court of the parish of L., and being on that day in the legal
exercise of the duties of the said office, one C. D. of the said parish,
on the day and year and in the parish aforesaid, did offer to give to the
said A. B. three hundred dollars as a bribe, if he would permit him
the said C. D. to alter the record of a judgment entered in the said
court in favour of the said C. D. against one E. F., for five hundred
dollars, by erasing in the said record the word "hundred" and insert-
ing in the place thereof the word "thousand," so as to falsify and
forge the said record, and make it appear to be a judgment for five
thousand dollars."]
on the
Art. 685. Complaint of forcible opposition to an officer of justice.
"That the deponent is [sheriff of the parish of L. and was so
day of
last, that having in his hands
a warrant in due form of law, issued by G. P. one of the justices of
the peace for the said parish, to arrest one E. F. charged with the
588
CODE OF PROCEDURE.
crime of forgery, and being about to execute the said warrant on the
said E. F., who was then in the house of G. H. in the said parish,
he was by force of arms opposed by I. K. and L. M. in the lawful
execution of the said official act, and prevented by force from entering
the said house to search for and arrest the said E. F. they the said
I. K. and L. M. knowing, at the same time, the office of the depo-
nent and his authority to make the said arrest."]
Art. 686. Warrant for arrest and commitment.
"Charged with having forcibly opposed A. B. sheriff of the
parish of L. in the lawful execution of an official duty."
Art. 687. Indictment.
"Did by force oppose A. B. then being sheriff of the said parish
of L. in the lawful execution of an official act, that is to say, by forci-
bly preventing him from making the arrest of one E. F. by virtue of a
warrant in due form of law, issued by G. P. one of the justices, &c.
commanding the said sheriff to arrest the said E. F. and bring him.
for examination, on a charge of forgery, they the said I. K. and L.
M. well knowing that the said A. B. was sheriff of the said parish, and
had legal authority to make the said arrest."
Art. 688. Complaint where the opposition was made in a case when
the arrest was authorized to be made without warrant.
day of
"That on the
last, A. B. was
murdered in the said parish, by a blow with an axe on the head of
the said A. B., of which he instantly died, given by C. D. of the said.
parish; that the said C. D. immediately fled, and that the deponent
having good reason to believe that he would effect his escape before
a warrant could be obtained, and there being no magistrate present,
the deponent pursued the said C. D. with the intent to arrest and
bring him before a magistrate for examination and commitment, but
that I. K. and L. M. well knowing all that is above stated, forcibly
opposed the deponent in the lawful execution of the said duty."
Art. 689. Warrant for arrest and commitment.
-Charged on oath with having forcibly opposed E. F. legally
acting as an officer of justice, in the lawful execution of the official act
of arresting C. D. who fled after having committed murder, the cir-
cumstances under which the said E. F. acted being then known to
the said I. K. and L. M.”
Art. 690. Indictment.
"That on the
day of
in the year
in the parish of L. the crime of murder was committed on one A. B.
by a certain C. D. who instantly endeavoured to make his escape,
and there being good reason to believe that he would effect it before
a warrant could be obtained, and there being no magistrate present,
E. F. pursued the said C. D. with the intent to arrest him; but that
I. K. and L. M. well knowing the premises, on the day and year and
at the place aforesaid, forcibly opposed the said E. F. in making the
said arrest," &c.
Art. 691. Complaint of rescue.
——“[That the deponent being sheriff of the parish of L. had on
the
day of
last a warrant in due form of law,
issued by G. P. one of the justices, commanding the deponent to
arrest A. B. charged on oath with the crime of forgery; on which
warrant the said A. B. was lawfully arrested and in the custody of
CODE OF PROCEDURE.
589
the deponent, who was proceeding with him to the said justice as by
the said warrant he was commanded, and that] I. K. and L. M. did
on the day and year and the place last aforesaid, by force of arms,
rescue the said C. D. from the deponent's custody and set him at
liberty."
Art. 692. Warrant and commitment.
Charged with having rescued from the custody of the sheriff
of the parish of L. one C. D. lawfully arrested by the said sheriff on a
[warrant for forgery," &c.]
Art. 693. Indictment.
The same as the complaint, substituting the name of the sheriff for
the words "the deponent," whenever they occur.
Art. 694. Complaint of escape.
---"That A. B. being lawfully arrested and in the custody of the
deponent, [by virtue of a warrant to him directed and delivered,
issued in due form of law by G. P. one of the justices, &c. command-
ing the deponent to arrest the said A. B. charged on oath with the
assault and battery upon G. H.] and being so in custody the said A. B.
privately escaped therefrom without being legally discharged," &c.
Art. 695. Warrant and commitment.
--"Charged on oath with having escaped from a lawful arrest," &c.
Art. 696. Indictment.
"Did, after being lawfully arrested, on a charge of [assault and
battery committed upon one G. H.] escape from the custody of the
sheriff of the parish of L. without being legally discharged."
Art. 697. Complaint for breach of prison.
on the
day of
That he is the keeper of the public prison of the parish of L.,
and that A. B. was legally committed to his custody in the said prison
last, by a commitment in due
form of law, issued by G. P. one of the justices, &c. charging the said
A. B. [with the crime of house-breaking; and that in the night of the
last, broke the said prison by taking
out two of the iron bars which formed the window-grates of the said
prison], and escaped [or attempted to escape] out of the said prison
by the breach he had so made.”
day of
Art. 698. Warrant and commitment.
-Charged with breach of prison and attempt to escape [or with
having escaped."]
Art. 699. Indictment.
That on the
day of
in the year
being [legally] confined in the public prison of the parish of L. in the
said parish, and in the custody of the keeper thereof, on a charge of
[house-breaking], he did then and there forcibly break [the bars
which formed the window grates thereof], and escape through the
breach he had thus made."
year
day of
in the
Art. 700. Indictment for aiding the prisoner to attempt an escape.
--"That one A. B. was on the
lawfully confined in the public prison of the parish of
L. by virtue of a commitment made by a magistrate, for the [crime of
theft], and that I. K. and L. M. did, on the day and year and in the
parish aforesaid, furnish the said A. B. with [a hammer and saw] for
the purpose of attempting his escape, by breaking the said prison with
the instruments aforesaid.”
590
!
CODE OF PROCEDURE.
Art. 701. Warrant and commitment for the above offence.
"Charged with having furnished to A. B. a prisoner legally
confined in the public prison of the parish of L. instruments for at-
tempting his escape by breaking the prison."
Art. 702. In all the proceedings under this chapter, if the defendant
be an attorney at law or a counsellor at law, these words must be in-
serted after his name in the charge of the offence, "he being at that
time an attorney at law," or "counsellor at law," or both, as the case
may be.
Art. 703. Complaint against an attorney, for malpractice.
6 That A. B. being on the
day of
last, an attorney
and counsellor at law, duly admitted to practise in the parish court of
the parish of L., and having been charged with the prosecution of a
suit brought by the deponent in that court against one C. D. for the
recovery of a tract of land; on the day and year and in the parish
aforesaid, during the pendency of the said suit, did designedly divulge
to the said C. D., to the injury of the deponent, a circumstance that
came to his knowledge by virtue of this trust, to wit, [that I. K. under
whom the defendant claimed the land in question, had resided for two
years in this state, the knowledge of which fact enabled the said C. D.
to avail himself of a plea of prescription against the deponent's] title;
or, [did give counsel to the said C. D. to plead prescription against the
deponent's title]; or, [did, after having been consulted on the merits of
the case for the deponent, under pretext that the deponent had not
paid his fees, (or under some other pretext, stating it,) appear for the
said C. D. as his counsellor in court in the said cause]-[or secretly as
his adviser, as the case may be]; or, [did in the prosecution of the
said cause, with intent to injure the deponent, (agree to put off the trial
of the said cause) when he was not obliged by law so to do, by which
the deponent suffered great injury]; or, [did with intent to injure the
deponent, omit to bring on the trial of the said cause, which he lawful-
ly might have done, by which the deponent suffered great injury]; or,
[did receive from the said C. D. the sum of one thousand dollars, under
colour of a fee for advice to be given for services to be rendered by
the said A. B., but in reality as a bribe for betraying the trust reposed
in him as attorney and counsellor to the deponent."]
Art. 704. In the warrant and commitment, it will be sufficient to say,
in either of these complaints—
Charged with malpractice as an attorney at law, or a counsel-
lor at law, or both, [or charged with receiving a bribe], as the case may
be.
Art. 705. Indictment.
The same charge as in the complaint, substituting the name of the
complainant for the words "the deponent," whenever they occur.
Art. 706. The above forms will serve for all prosecutions against
attornies or counsellors, changing only the charge according to circum-
stances, retaining in all cases the words of the article, under which the
prosecution is made, where the sense will admit.
Art. 707. Complaint for personating an officer of justice.
"That one A. B. not being an officer of justice, but fraudulent-
ly pretending to be [one of the deputies of the sheriff of the parish of
L., in such assumed character on the
the year
,
day of
in
in the parish of L., made an assault on the depo-
CODE OF PROCEDURE.
591
'
nent, and kept him in custody and imprisonment for the space of two
hours]; or, in such assumed character, exacted and received, [or at-
tempted to receive, as the case may be], the sum of five dollars from
the deponent, for fees due to the said sheriff.”
Art. 708. Warrant and commitment.
"Charged on oath with falsely and fraudulently personating an
officer of justice."
Art. 709. Indictment.
The same charge as in the complaint, substituting the name of the
complainant for the words "the deponent," whenever they occur.
Art. 710. Complaint for falsely personating another in a judicial pro-
ceeding.
the
day of
"That A. B. without having received any authority from the
deponent, falsely personated him, and in such assumed character, [on
in the year
, in the parish
of L., put in a plea of confession of judgment in a suit brought by one
J. S. against the deponent, in the parish court of the parish of L.;] or
[put in bail for one C. D. in a suit brought against him by one J. S. in
the parish court of the parish of L."]
Art. 711. Complaint for perjury in a court of justice.
"Be it remembered, that on
in the year of our Lord
>
this
day of
day of
before me, G. P. judge of the city
court of the city of New Orleans, came I. K. and L. L. who being
sworn, do say, that [on the
last, they were
present in the district court of the first district of this state then sitting
in this city, and that they saw and heard J. S. sworn as a witness in the
said court in a cause then there pending, between A. B. plaintiff, and C.
D. defendant, and that the said J. S. did then and there, under
the sanction of the oath so administered, falsely, deliberately, and wil-
fully assert and give in evidence in the said cause, that he heard
the defendant acknowledge on the first day of January last, in the city
of New Orleans, that he owed the sum of one hundred dollars to the
plaintiff in the said suit, which assertion the deponents declare to be a
falsehood, because they say that on the said first day of January the said J.
S. was not in the city of New Orleans, but was seen by both the depo-
nents on that day in the city of New York."]
Art. 712. Warrant and commitment.
"Charged on oath with the crime of perjury."
Art. 713. Indictment.
year
"That J. S. being, on the
day of
in the
, at the parish of New Orleans, sworn as a witness, on
oath legally administered to him [in the district court of the state of
Louisiana for the first district], in a suit pending in the said court be-
tween A. B. plaintiff and C. D. defendant, did under sanction of the
said oath declare and assert as evidence in the said cause, that [here in-
sert the particular part of the evidence which is found to be false];
which evidence and assertion so given and made the jurors present,
was a deliberate and wilful falsehood, inasmuch as [the said J. S. was
not at New Orleans at the time asserted in his said evidence, but at the
city of New York, and did hear the defendant acknowledge that he
owed the said sum to the plaintiff.”]
Art. 714. In proceedings for perjury on a written instrument, such
as an accusation before a magistrate, an examination before commis-
592
CODE OF PROCedure.
sioners, or answers to interrogatories, the whole instrument need not
be copied in the complaint or the indictment, but only that assertion
which is alleged to be false; the whole instrument must, however, be
produced and shown to the defendant previous to the arraignment in
the manner herein before directed with respect to forged instruments,
with the modifications contained in a subsequent chapter prescribing
the forms of proceeding on prosecutions for forgery.
Art. 715. Complaint for perjury, in answer to interrogatories put by
a plaintiff.
"That the deponent on the
day of
in the
year
presented a petition to the parish court of the parish
of L. against J. S, for the recovery of a sum of money due to him, by
promise, for goods sold; that, according to the forms prescribed by
law, he annexed to his said petition certain interrogations to be answer-
ed by the said J. S. on oath; among which interrogations was the fol-
lowing: First interrogatory-did you not on the
day of
day of
, or at any other time, acknowledge that you had purchased
the goods mentioned in the petition and promise to pay the amount to
the plaintiff?'-which interrogatories were allowed, and ordered by
the judge of the said court to be answered, and that the said J. S.
made answers thereto in writing; and in answer to the interrogatory
herein before set forth, on the
last, in the
parish of New Orleans, under the sanction of an oath legally adminis-
tered, that is to say, by G. P. one of the judges of the city court of
the city of New Orleans, did deliberately, and wilfully, and falsely
allege and declare, in writing, as follows: In answer to the first in-
terrogatory the respondent [meaning the said J. S.] answers-that he
never made such acknowledgement as set forth in the said first inter-
rogatory'-which allegation the deponent declares is a falsehood, in-
asmuch as the said J. S. did make such acknowledgement as is stated
or inquired of by the interrogatory above recited."
6
Art. 716. The charge in the indictment is the same as the complaint,
inserting the name of the complainant instead of the words "the depo-
nent," and the words "the grand jury present," instead of the words
"the deponent declares," in the conclusion of the statement.
Art. 717. Complaint for false-swearing.
day of
"That J. S. on the
in the year
in the
parish of New-Orleans, made a voluntary affidavit under the sanction of
an oath, administered by H. P. one of the justices, to the following
effect, [recite the part of the affidavit alleged to be false]; and the depo-
nent declares, that the allegation aforesaid, contained in the said affi-
davit, is a falsehood, deliberately and wilfully made, inasmuch as in truth
[insert the true statement as above."]
Art. 718. The indictment pursues the complaint, changing as is above
directed in the last precedent.
Art. 719. Complaint for subornation or perjury.
That [as in the case of perjury by a witness in court]; and that
W. S. of the said parish, did, by means unknown to the deponent, pro-
cure the said J. S. to make the false declaration and commit the perjury
aforesaid."
Art. 720. Indictment.
—————“That [the same as the indictment for perjury by a witness in
court; and add,] and the jurors aforesaid do further present, that W. S.
Code of PROCEDURE.
593
of the said city, did, on the said
day of
in the year
at the parish of New-Orleans, by means to the said jurors unknown, in-
duce the said J. S. to make the false declaration and commit the perjury
aforesaid."
Art. 721. Complaint for endeavouring to suborn.
day of
in the year
, in the
"That J. S. on the
parish of L., by offering a reward of one hundred dollars to him, endea-
voured to persuade one W. S. to commit perjury by declaring, under
the sanction of an oath as a witness in a certain cause then pending and
to be tried before the parish court of the parish of L., brought by this de-
ponent against A. B., that he the said W. S. had [insert the fact endea-
voured to be proved,] he the said J. S. well knowing that [if the said
W. S. had wilfully and deliberately made the said declaration, under
the sanction of an oath lawfully administered in the said court,] he
would have been guilty of perjury."
Art. 722. Indictment.
"That J. S. on the
day of
in the year
at the
parish of L., by offering a reward of one hundred dollars to one W. S.,
did endeavour to persuade him the said W. S. to commit perjury by de-
claring, under the sanction of an oath to be legally administered to him
the said W. S. as a witness in a certain cause then pending and to be
tried in the parish court of the parish of L. between one I. K. plaintiff
and A. B. defendant," &c. as in the complaint.
Art. 723. Complaint and indictment for obstructing the proceedings
of a court of justice.
day of
day of
in the year
That J. S. during the session of the parish court of the parish
of L. on the
, in the parish of L.
did [by loud speaking or making a clamour and noise] wilfully obstruct
the proceedings of the said court; or [that the parish court of the par-
ish of L. on the
in the year
, made a legal
order for the maintenance of order (or to preserve regularity of proceed-
ings therein), which order directed [insert the purport of the order];
and that the said order was signified to one J. S. for his government, but
that he the said J. S. did refuse to obey the same, and did," [insert the
act of disobedience.]
day of
"
in the
Art. 724. Indictment for using indecorous expressions, &c.
"That J. S. on the
in the year
parish of
in the [parish court of the said parish] then open and in
session, did verbally use the following [indecorous,] [contemptuous, ] or
[insulting] expressions, addressed to the judge of the said court, [of,]
or [to,] the [judge of the said court,] or said [court,] that is to say, [re-
cite the expressions complained of."]
Art. 725. Indictment for indecorous expressions in writing.
day of
"That J. S. on the
in the year
, in the
parish of New-Orleans, in a written argument or pleading, addressed to
the [judges of the supreme court of the state of Louisiana,] in a suit then
pending in the said court between A. B. plaintiff and C. D. defendant,
did use the following [indecorous,] [contemptuous,] or [insulting] ex-
pressions of or [to] the said court, or [the judges thereof,] that is to
say," [insert the language complained of.]
Art. 726. If the party complained of be an attorney or counsellor,
and the indictment be on a third offence, the circumstances of his being
an attorney or counsellor must be set forth in the indictment.
3 Z
594
CODE OF PROCEDURE.
"
Art. 727. Indictment for obstructing the proceedings of courts.
"That on the day of
in the year
at the par-
ish of L. the parish court of the said parish being then open, J. S. [by
threats of violence] or [by violence] offered to A. B. the [judge of the
said court,] or [summoned to attend the said court as a juror,] or [as a
witness,] or attending the said court to [prosecute] or defend a suit as a
party or [as an attorney or counsellor,] obstructed the proceedings of the
said court."
Art. 728. If the person accused in the above indictment be an attor-
ney or counsellor, that fact must be stated.
CHAPTER VI.
Forms of proceeding on prosecutions for offences against public
tranquillity.
Art. 729. Indictment for an unlawful assembly.
"That A. B., [together with C. D., E. F., &c.] or together with
three or more persons, to the jurors unknown, did, on the
2
day of
in the year
in the parish of L. assemble with intent to aid
each other by violence illegally to [pull down a house erected by A.
B. in the said parish,] or [to do any other illegal act, reciting it."]
Art. 730. For a riot.
"That A. B. [as in the preceding form to the end]; and that
being so assembled, the said A. B. and the others of the said assembly,
did actually, by violence and illegally, [pull down the said house, or do
any other illegal act, reciting it."]
Art. 731. When the original assembly was not unlawful.
—————‹‹ That A. B. together with three or more persons, to the jur-
ors unknown, having assembled on the
in the year
day of
in the parish of L. for a lawful purpose, did, afterwards and be-
fore the said assembly was dispersed, on the same day and year and at
the place aforesaid, proceed to aid each other in committing, and did
commit the unlawful and violent act of [recite the unlawful act."]
Art. 732. An unlawful assembly for the purpose of witnessing a box-
ing match.
on the
in the year
"
That A. B. with three or more others, to the jurors unknown,
day of
at the parish of L., assem-
bled together for the purpose of being present at and witnessing a box-
ing match, made up and agreed to be fought between [C. and D.], or
[between two persons to the jurors unknown."]
[If the fight actually takes place, add,] “and the jurors further present,
that a single combat with fists, or a boxing match, was then and there
fought in the presence of the said assembly, whereof the said A. B. was.
one, and that he and the other persons composing the said assembly wit-
nessed the boxing match; and [if wagers were laid, add,] that the said
A. B. then and there laid a wager on the event of such combat or box-
ing match."
Art. 733. Indictment for public disturbance.
"That A. B. and C. D. on the
day of
in the year
code of procedure.
595
>
in the parish of L., did meet in the public highway, near to the
houses of I. K., and J. S., and G. H., and other inhabitants of the said
parish, and being so met [by vociferation, quarrelling,] or fighting with
each other, greatly disturbed the said inhabitants of the said place in
the prosecution of their business; [or if at night, say,] in their neces-
sary repose.
""
Art. 734. The enumeration of the names of the inhabitants in the
above, is made only to designate the place, but is not necessary if the
neighbourhood be otherwise designated, as a square or street in a city.
CHAPTER VII.
Forms used in prosecutions for offences against the right of suffrage.
Art. 735. Indictment for bribing at an election.
"That A. B. on the
day of
in the year
day of
at
>
then next
the parish of L., was an inhabitant of the said parish entitled by law to
vote at public elections for members of the and for governor of
this state, and that J. S. on the day and year and at the place aforesaid,
for the purpose of influencing the vote of the said A. B. at the public.
election then about to be held on the
thereafter for the election of [a governor of the state of Louisiana], did
offer to the said A. B. [the sum of ten dollars, or any other advantage
or emolument which would constitute bribery, according to the defini-
tion of that term in the book of Definitions, describing what such
advantage or emolument is], as a BRIBE, if he would consent to vote at
such election for C. D. as governor.
""
If the charge be given for a BRIBE, insert "did give" instead of "did
offer;" and instead of the words, "if he would consent to vote," insert
"for consenting to vote."
If the charge be for receiving a BRIBE, add at the end of the last
form, which the said A. B. received, and promised, in consideration
of such bribe, to vote for the said C. D."
Art. 736. Indictment for offering or giving a bribe to a judge or clerk
of the election, or the officers attending it.
day of in the year
"That A. B. being [parish judge of the parish of L., is by
virtue of his office constituted by law one of the judges of the public
elections for members of the general assembly and governor of the
state, in the said parish of L.]; and that J. S. desiring to influence the
said A. B. to betray the said trust reposed in him by law, on the
, at the parish aforesaid, proposed and
offered to the said A. B. [to procure for him by the influence of him
the said J. S. the place as cashier of the bank of in the city of
New Orleans, as a bribe, if he the said A. B. would, at a public elec-
tion for governor of the state then about to be held in the said parish,
on the
then next, put into the ballot-box one hun-
dred ballots with the name of X. Y. written thereon, and take out an
equal number that had been legally deposited therein, containing the
name of some other person.
day of
""
If the charge be bribery against the judge, clerk, or other officer,
596
CODE OF PRocedure.
add, "which proposal the said A. B. did then and there accept, and
promised to perform the illegal act so requested to be done as a con-
sideration for the said bribe."
Art. 737. The above form will serve for indictments against clerks
and other officers of elections, changing only the allegation of the office.
Art. 738. Indictment for hiring persons to procure votes.
in the year
"That J. S. on the
day of
, in the
parish of did offer or [give, as the case is], to one A. B. [the sum
of fifty dollars] as a reward for his services in persuading or procuring
persons qualified to vote as electors for [governor] to vote at an elec-
tion then about to take place for X. Y. as [governor], or, as the case
may be, [to vote against A. Z."]
Art. 739. Indictment for endeavouring to procure votes by threats.
"That A. B. of the parish of L. on the
day of
followed the business of a grocer, and in the way of his business, then
and for a long time before, had the custom of one J. S. and made law-
ful gains by supplying him with groceries for his family, and that the
said A. B. on the
day of
last aforesaid, was entitled to vote
at a public election for members of the general assembly of this state.
then about to be held on the
day of
then next in the said
parish; and the jurors further present, that J. S. of the said parish, be-
ing desirous of procuring the vote and influence of the said A. B. at
the said election in favour of C. D., E. F., &c. as members of the
house of representatives, on the day and year and at the parish first
aforesaid, threatened the said A. B. to withdraw his custom or dealing
from him in his said trade of grocer, if he the said A. B. did not, at
the said election, vote for the said C. D. and E. F. as members of the
house of representatives."
Art. 740. Indictment against a clerk of election for making a false
entry.
و
"That J. S. being appointed clerk of the public election began
to be held on the
day of
in the year
at the parish
of L. for members of the house of representatives of the state of Loui-
siana, and being in the exercise of the duties of the said office on the
day of
in the year aforesaid, did knowingly make a false
entry on the list of voters at the said election, by inserting thereon
[insert the false entry."]
Art. 741. If against a judge.
That J. S. being a judge of the public election, began to be
held, &c. [as in the above form] did knowingly put into the ballot-box
a ballot not given by an elector, or [did permit a ballot, not given by
an elector, to be put into the ballot-box;] or [did take, or permit to be
taken, out of the ballot-box, in a manner not prescribed by law, a ballot
deposited therein]; or [did designedly change the ballots given by the
electors]; or [did designedly destroy the ballots given by the electors
at such election by burning the same]; or [did designedly, by omitting
to seal the box, or any other omission or act, describing it], destroy or
change the ballots given at the said election."]
Art. 742. The other offences under the second chapter of the seventh
title of the Penal Code, may be indicted according to the above form,
stating in the same manner the office of the defendant, and the act or
omission as nearly as possible in the words of the article creating the
offence.
code of procedure.
597
Art. 743. Indictment for bringing armed men within a mile of the
place of election.
That A. B. having under his orders [as colonel of the militia
of the state, or other military office, if he hold one, stating it], a body
of troops or armed men, did on the
in the year
,
day of
at the parish of L. order and bring, [or did keep, according to
the fact], the said troops within one mile of the [courthouse] of the said
parish, where a public election for [members of the general assembly]
of the state of Louisiana was on that day held, and [if such be the
charge, add] with intent to influence the said election."
Art. 744. Indictments for riots at elections, must be in the form of
indictments for riots on other occasions, only adding to the charge that
such riot was within half a mile of the place at which a public election
was then held.
Art. 745. Indictments for other offences committed at elections,
must state the holding of the election in the form above given, and the
offence as nearly as possible in the words of the article which forbids
the offence.
CHAPTER VIII.
Of forms used in prosecutions for offences against the liberty of
the press.
Art. 746. Indictment for preventing any one from publishing by
threats, &c.
day of
"That A. B. having the intention, according to the right secured
to him by the constitution, of freely speaking, writing, and printing
on any subject, to write, or to publish, or verbally to make [an inves-
tigation into the public character and conduct of J. S. as governor of
the state of Louisiana, (or as judge or member of the general assem-
bly, or as any other officer, stating the office), or any other speech,
or publication, or writing, describing its nature], J. S. of the parish
of L. on the
in the year
in the parish aforesaid, in order to prevent, or endeavour to prevent
the said A. B. from exercising the right secured to him as aforesaid,
did threaten him, that if he printed, [wrote, or spoke, as the case may
be], the said investigation, [or other matter, according to the fact], he
the said J. S. would beat him the said A. B. [or do some other injury
to his person, property, or credit, describing the nature of the in-
jury,"] &c.
If the offender be a member of the general assembly, or a judge, or
judicial or executive officer, then add, if his intent will warrant the
charge, he the said J. S. being [state the place or office], and hav-
ing made the said threats, in order to prevent an investigation of his
official conduct, [or if he be a member of the general assembly, the
investigation of the branch to which he belongs, stating it,"] &c.
If the offence be committed by a judge, and the publication be pre-
vented by an official act or the threat of one, follow the above form
down to and including the words, "that he the said J. S. would,"
598
CODE OF PROCEDURE.
after which insert "he being then [state his office] by virtue of his
office, arrest, [or state any other official act that was threatened."]
If the publication was prevented, or attempted to be prevented, by
the actual exercise of the official act, state, "did by virtue of his
office, he being then [state the office], arrest or [state the official act]
the said A. B., and did thereby prevent, or attempt to prevent, the
said A. B. from speaking, [printing, or writing, as the case may be],
what he so intended."
Art. 747. Indictment against a judge for granting an injunction
against a publication, under an allegation that it was a libel.
"That J. S. being judge and [state the office] did [insert the date
and place] issue an injunction commanding A. B. to desist from pub-
lishing a writing which he intended to publish, entitled or purporting
to be [describing the writing] under pretext [that the same was a libel
or a seditious writing on,"] [stating the cause for granting the injunc-
tion.]
Art. 748. Indictment for preventing the investigation of legislative,
judicial, or executive proceedings.
"That J. S. [being a judge, and state his office if he have any],
intending to restrain the right, given by the constitution, to examine
the proceedings of the legislature, or of any branch of the government,
and intending also to give effect to an act of the general assembly,
entitled an act,' [insert the title], passed in contravention of that
clause in the constitution which declares, that no law shall be made to
restrain the right aforesaid, did," [here insert the act done in obe-
dience to the unconstitutional law.]
'
CHAPTER IX.
Of the forms to be used in prosecutions for offences against public
records.
Art. 749. Indictment for forging a public record.
"That A. B. on the
2
day of
in the year
at the parish of L. forged a public record, purporting to
be the record of an act of the general assembly of Louisiana, of which
forgery the following is a copy [insert an exact copy of the forged
record], with intent to injure or defraud, and so the said jurors say,
that the said A. B. hath committed the crime of forgery, contrary," &c.
Art. 750. When the forgery consists in altering a record, the indict-
ment shall be:
"That among the records of conveyances and other authentic
acts, kept in the notary's office now under the care of A. B. notary
public, in [state the place] there was prior to the
day of
in the year
>
a certain [act of sales], made by I.
K. to L. M. of which the following is a copy [insert a copy of the
record as it was before the alteration], and that J. S. on the
in the year
at the parish of L. made,
without any legal authority, and with intent to injure or defraud,
made such alterations in the said record as to make it appear to be of
day of
"
CODE OF PROCEDURE.
599
the following tenor [insert a copy of the record as altered], and so the
said jurors say, that the said J. S. hath committed the crime of for-
gery."
Art. 751. When, from obliterations made in the original record it
is difficult to prove what its exact tenor was before the alterations, the
form shall be:
"That among the records [designating them as above] there was
one purporting to be [describe the nature of the altered record as it
was before the alteration], and that J. S. on the day [state the date]
at the parish of L., without lawful authority, and with design to injure
or defraud, made such alterations in the said record as to make it
appear to be of the following tenor," [insert a copy of the record as
altered.]
Art. 752. Indictment for forging an official certificate of an officer
having the custody of public records.
"Did make and forge a false certificate, of which the following is
a copy, [insert an exact copy of the forged certificate], with the design
to injure or defraud, and so the said jurors say, that the said J. S. hath
committed forgery, contrary," &c.
Art. 753. Indictment for carrying away, defacing, or destroying a
public record.
"That A. B. on the
in the parish of
day of
in the year
did fraudulently [carry away],
[deface], or [as the case may be, destroy], a public record, that is to
say, the record of [the death of A. B. kept by the recorder of births
and deaths in the city of New Orleans], [or any other public record,"
describing it.]
Art. 754. If either of the above offences be committed by the
officer having the custody of the record, in relation to which the
crime was committed, it must be thus stated, after describing the
offence: "with design to injure or defraud: he the said J. S. being at
that time the officer entrusted with the custody of the said public
record."
Art. 755. If the offence be concealing or carrying away the record
by an officer, the description of the offence must be, "did [conceal]
or carry away a public record, [describing it], so that persons inter-
ested therein could not have access to it ;" or, as the case may be,
"did advise or counsel to such [forgery], [destruction], or [carrying
away]," according to the case.
Art. 756. Other forms against officers for offences affecting public
records.
"That J. S. being an officer entrusted with the custody of public
records, that is to say, [describe the office], did, knowingly and frau-
dulently, certify the entry of an act on the said records, in the name of
one A. B. who was not present at the time such act purports to have
been passed; or [who did not consent to such act], which act is in
the words following, [insert copy of the act."]
day of
>
Or, "did intentionally and fraudulently place on the said regis-
ter or records, an act in words following, [copy the act], under the
date of the
in the year
which
was not the date at which the said act was, in truth, registered or re-
corded, with intent to give an illegal advantage to [naming the person
favoured by the fraud; or say, to some one to the jurors unknown."]
600
CODE OF PROCEDURE.
Or," did fraudulently permit A. B. or [some person, to the
jurors unknown,] to personate one I. K., and in his name and without
his authority, in the execution of an act, entered or intended to be
entered on such record or registry."
Or, - "did undesignedly, and for want of proper care, suffer the
said records, so entrusted to his care, [or some part of the records,
describing it,] to be [defaced,] or [taken away,] [or lost,] or to be
altered, so that a certain [act] which was truly entered on the said re-
cord or registry, in the following words, [insert a copy of the original
(act)], appeared, after such alterations, to be an [act] in the words fol-
lowing, [insert the (act) as altered]; by reason of which [alterations,]
[defacement,] [obliterations,] or [loss,] one A. B. was injured in his
[property,] [condition,] or [reputation,"] according to the case.
Or, did, in his official capacity, certify as true that [insert the
act falsely certified] when, in fact and truth, the part so certified was
false; by reason of which false certificate one A. B. was injured," &c.
[as in the last charge].
If in the last case the accusation be, that the falsehood was fraudu-
lently certified, it must be so stated; but need not, unless specially
intended inasmuch as the mere falsehood is a misdemeanor, and the
doing it fraudulently is a crime.
Art. 757. Indictment for using a record so forged, or fraudulently
made, or entered.
day of
[Charge the offence according to to the circumstances, as set
forth in one of the preceding forms of this chapter, and then add,]
and the jurors aforesaid do further present, that Y. Z. well-knowing
the premises, afterwards, on the
in the
parish of L. [used the said record or act, so (forged,) or fraudulently
entered,] or [made,] or registered, or [recorded] on the said [false declar-
ation,] [as the case may be,] producing the same in a court of the par-
ish of L. [stating the court] as testimony, or by [state the means by
which advantage was endeavoured to be derived from the fraudulent
act."]
CHAPTER X.
Of the forms used in prosecutions for offences against the current
coin and public securities.
Art. 758. Indictment for counterfeiting.
"Did counterfeit [two gold coins of the United States, called
eagles; or one silver coin of the Kingdom of Spain or of the Repub-
lic of Mexico, called a dollar; or one gold coin of Portugal, called a
half-johannes; or any other gold or silver coin, according to the case,
describing them only by their popular names, without adding their
value or any other description."]
Art. 759. Indictment for passing or offering to pass.
That J. S. one, &c. [as in the form] having in his possession one
counterfeited gold coin of the United States, called an eagle, or one
[describing the counterfeited coin as above], and knowing the same to
CODE OF PROCEDURE.
601
,
be counterfeited, did, on the day and year last aforesaid, at the parish
of L., pass or offer to pass the same [as the case may be] to one I. K.
or to some person to the said jurors unknown," &c.
Art. 760. Indictment for having in possession dies or other instru-
ments.
day of
in the year
"That J. S. on the
, at the parish of L., had in his possession a die [or some
other instrument, describing it as a punch, screw, or other implement,
by name,] such as is usually employed solely for the coinage of money,
with the intent of committing the crime of counterfeiting, or of aiding
therein."
"did, on the
day of
in the year
Or,
at the parish of L., repair a die [or other instrument, describing it, as
a punch, screw, or other implement, by name,] such as is usually em-
ployed solely in the coinage of money, with the intention of commit-
ting the crime of counterfeiting, or of aiding therein."
Ör, "had in his possession and did conceal certain base metal
prepared for coinage, with the intention," &c. [as above.]
Art. 761. Indictment for having counterfeit coins in possession with
intent to pass them.
"That J. S. on the
"
day of
in the year
at the parish of L., had in his possession [three counterfeit-
ed gold coins of the United States, called half eagles, and ten counter-
feited silver coins of the Republic of Mexico, called dollars], with intent
to pass them as true, or cause them to be passed as true, contrary to
the laws," &c.
Art. 762. For diminishing the weight of coins.
"That J. S. having in his possession [ten gold coins of the
United States, called eagles,] with intent to profit, did, on the
day of
in the year
in the parish of L., diminish the
weight of the said coins, and did afterwards, on the same day and year,
at the place aforesaid, pass [or attempt to pass, according to the case],
the same for the value the said coins had be fore the weight was so
diminished." [Or, after the charge of diminishing the weight, as above
stated, insert,]" did send or carry the same to [stating the place] to be
passed for the value the said coins had before they were so diminished
in value," &c.
CHAPTER XI.
Forms used in prosecutions for offences against the public receivers.
Art. 763. Indictment against receivers of public money for the frau-
dulent appropriation thereof.
"That J. S. being a person legally empowered to receive mo-
ney or [security for money] for the state, or for the corporation of
[giving the title of the corporation], by virtue of his office [state
the description or name of the office did, on the
in the year
2
day of
and on sundry other days between that
time and the day of commencing the prosecution for this offence, ille-
4 A
602
CODE OF PROCEDURE.
gally appropriate certain large sums of money [or certain securities for
money, describe them], amounting in all to one thousand dollars, which
he had before that time received for the state of Louisiana, [or for the
public corporation, naming it]; and did, on the
day of
in the year
last aforesaid, at the said parish, by rendering a false
account, or [as the case may be] by producing false vouchers [describ-
ing them,] or by other means [describing those means,] did endeavour
to conceal such illegal appropriation, with intent to defraud the state
of Louisiana, [or the corporation of (naming it)], of the said moneys
[or securities, as the case may be."]
Art. 764. Indictment for illegal appropriation with intent to restore
the same.
As in the preceding form, omitting the charge of rendering a false
account and all the subsequent part of the charge, and instead thereof
state," and the jurors further present that on the
day of
in the year
at the parish of L., demand was made by A. B.
a person legally authorized for that purpose by the state [or the corpor-
ation] from the said J. S. of the sum [or of the securities] so illegally
appropriated by him; but that he did not, within three days after such
demand, pay the same."
Art. 765. Indictment for not depositing public money.
"That J. S. being a person legally empowered to receive money
or securities for money for the state, [or for the corporation of (naming
it)] by virtue of his office [state what it was], did, on the
, at the parish of
day of
in the year
receive a sum [or sums,
as the case may be], of money [or securities] to the amount of three
hundred dollars and upwards, and did not, within three days after hav-
ing so received the said sum of money or securities, deposit the same
in an incorporated bank, according to the directions given by law,
although a bank of that description, to wit, the bank of L. was within
three leagues of the place of abode of the said J. S."
If the bank was more than three leagues and not more than twenty
from the receiver's abode, then the charge must be, "that he did not
make the deposit within fifteen days after receiving the same, and that
the treasurer of the state did not enlarge the time allowed for making
the said deposit."
1
Art. 766. Indictment for extortion by a receiver.
"That J. S. being a person legally appointed, by virtue of his
office [state the office] to receive taxes for the state [or for the corpora-
tion of L.] on the [state the date and place], did, under pretence of col-
lecting the said tax, extort from one A. B. the sum of
"
which
was not due for such tax; or [did attempt to extort from A. B. a sum of
more than was really due for such taxes]; or did demand a sum
of or an emolument of [describing the nature of the emolument,]
or [a service or a favour, describing the nature thereof particularly,
from A. B. as a consideration for granting a delay in the collection of
then due from the said A. B. for taxes to the said state
[or corporation]; or as a consideration [stating any other consideration
in relation to the collection of such money, for which the said sum
was paid, or such emolument, service, or favour was granted, unless it
were paid or given for the emolument allowed by law for such collec-
tion,"] &c.
a sum of
Art. 767. Indictment for preventing the collection of public moneys
by force.
CODE OF PROCEDURE.
603
day of
in the year
at the
"That on the
parish of
one A. B. was duly authorized as [sheriff of the said
parish, or other office, designating it], to enforce the payment of taxes
[or other debt, stating of what kind], due to the state [or to a public
corporation, naming it], and J. S. on the day and year and at the place
aforesaid, did, by force, attempt to prevent, or [did, by force or threats
of force, prevent] the said A. B. from seizing the goods of one C. D.,
[or state any other act which he was prevented from doing], with in-
tent to enforce the payment of a sum of due from him to the said
C. D. to the state, [or to the corporation, naming it], for taxes, [or for
any other debt, stating it], which seizure [or other act in which he was
obstructed, stating it,] was a duty required of the said A. B. by law
relative to the collection of taxes [or debt."]
CHAPTER XII.
Forms of indictment for offences which affect foreign commerce.
Art. 768. Charge for exporting flour without inspection.
"Did export from this state [or ship for the purpose of exporta-
tion] on board the ship called the [Andrew Jackson] [one hundred
barrels of flour] without having caused the same to be inspected, accord-
ing to the directions of the laws of the state in such case provided."
Art. 769. For counterfeiting the mark of an inspector.
"Did COUNTERFEIT the [mark], or [brand], or [stamp], directed
by the laws of this state to be made or placed on all flour exported from
the port of New Orleans, and made or placed such counterfeit [mark,
or brand, or stamp,] on [one hundred barrels of flour,"] &c.
Art. 770. For placing articles of inferior value in a package, with
intent to defraud.
66
Did, with intent to defraud, put into a [hogshead] apparently
filled with [tobacco], or [a bale apparently filled with cotton], or [a box
apparently filled with spermaceti candles], or [a package apparently filled
with cochineal], or [any other cask, bale, box, or package, describing
it, with apparent articles], being merchandize usually sold by weight, a
quantity of [rubbish], [or any other article, describing it], being of less
value than the said tobacco, [or other article], with which the said hogs-
head, or [bale], or [package], or [box], was apparently filled," &c.
Art. 771. For selling merchandize with articles of inferior value
concealed therein.
"Did [sell], or [barter], or [give in payment], to A. B., or
[expose for sale], or [ship for exportation in a certain ship called A. J.]
a [bale apparently filled with cotton, or other articles as above], being
merchandize usually sold by weight, with a quantity of [rubbish] con-
cealed therein, with intent to defraud, contrary," &c.
Art. 772. For destroying or injuring a vessel, with intent to defraud.
"That J. S. within the limits of this state, that is to say, in the
river Mississippi, below the Balize, in the parish of Plaquemines, he
being then and there the owner, [part owner], [freighter], of a certain
[schooner] called the [Bee], or being then and there employed as
[master], [supercargo], [seaman], or as [state any other capacity], on
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CODE OF PROCEDURE.
board a certain schooner called the [Bee], with intent to defraud or
injure A. B. who was [or some person or persons, to the jurors un-
known, who was or were] the [owner or owners of the said vessel] or
[of the cargo on board, or of any part thereof], or [the underwriters on
the said vessel, or the cargo on board, or some part thereof,] or those
interested in the said schooner, or the said cargo, [or in the [voyage],
[freight], or [profits] of the said [schooner]]; did [destroy the said
schooner], or did injure the said [schooner,] by [running her on shore],
or [cutting away the masts], or [doing other injury, describing it."]
If the offence be committed on the high seas, it must be so stated,
and it must be averred that the offender, at the time, was a citizen of
this state, or domiciliated within it.
Art. 773. For fraudulent insurance.
"That J. S. on the
day of
in the year
,
at the
parish of New Orleans, caused insurance to be made for one thousand
dollars, by the insurance company called the New Orleans Insurance
Company, on one hundred hogsheads of rum, which he represented to
the said insurance company as shipped [or about to be shipped] at
Jamaica in the West Indies, for New York, and pretended that the
said hogsheads contained Jamaica rum of the first proof, with intent to
defraud the said New Orleans Insurance Company, had actually shipped
one hundred hogsheads containing water, [or rum of less than one half
the value of Jamaica rum of the first proof], instead of one hundred
hogsheads of Jamaica rum of the first proof, contrary," &c.
If the insurance were made at some place not within this state, the
goods must be stated as having been represented as shipped, or about
to be shipped, within the state of Louisiana, and goods of inferior value
to have been actually shipped there.
Art. 774. Against an inn-keeper for concealing a seaman.
day of
,
at
"That J. S. being the keeper of a tavern, or [lodging-house, or
boarding-house], did, on the
in the year
the city of New Orleans, entertain, [lodge], or [conceal], A. B. a sea-
man who had, within one month previous to the day last aforesaid,
DESERTED from a merchant vessel called the D. in the port of New
Orleans, he the said J. S. knowing that the said A. B. had so deserted."
Art. 775. Against a master of a vessel shipping a seaman who has
deserted.
"That J. S. being the master of a ship called the D., lying in
the port of New Orleans, on the [insert the date and parish], did SHIP
as a mariner on board the said ship, one C. D. who did not produce his
discharge from the master of the vessel in which he last sailed, he the
said C. D. having deserted from a ship called the Bee, in the said port
of New Orleans, within one month before he was so shipped by the
said J. S."
Art. 776. For using false weights and measures.
That A. B. in the weighing of a quantity of sugar sold to C. D.
day of
in the year
in the
>
on the
parish of L., did use a false weight, knowing the said weight to be
false, with a design to defraud.”
The same form as to a false balance.
Art. 777. For a false measure.
"That J. S. on the
day of
in the year
at the parish of
in the measuring a quantity [of
CODE OF PROCEDURE.
605
whiskey], or [of cloth], sold on that day to C. D., did use a false mea-
sure, knowing the same to be false, with intent to defraud."
Art. 778. Warrant of arrest and for the seizure of false weights, or
measures.
"By A. B. [one of the judges, &c.] To the [sheriff of the city and
parish of New Orleans.]
"You are commanded to arrest J. S. charged on oath before me,
with having fraudulently used a false weight in the weighing of a cer-
tain quantity [of sugar] sold to C. D., knowing such weight to be
false; and you are also commanded to seize the weights used by the
said J. S. in weighing the articles sold by him in his trade of [a gro-
cer, or other trade, as the case may be]; and to bring as well the said
weights as the said J. S. before me, on [insert the return of the war-
rant], to be dealt with according to law."
Art. 779. When the weights, or balances, or measures, are brought
before the magistrate, in pursuance of the above warrant, he shall
cause the measures and weights to be compared and tested in his pre-
sence, by the officer appointed to keep the standard of weights and
measures; and if it be a balance that is the subject of prosecution, he
shall examine it, and shall retain all those that appear to be false, to
be used on the trial, and afterward destroyed according to law.
Art. 780. The above forms are to serve for purchases by false
weights, measures, or balances, changing the words "sold to" for the
words "purchased from.”
Art. 781. For altering marks.
"That J. S. having [one hundred barrels of flour, which had
been inspected by the officer appointed for that purpose by virtue of
the laws of this state, and which barrels had been marked by the said
officer with a mark, denoting that the flour contained in the said bar-
rels was of inferior quality, did, on the
,
day of
in the year
at the parish of New Orleans, falsely alter the
said marks, so as to make it appear that the said officer had put on the
said barrels a mark denoting that the flour contained in the said bar-
rels was of the best quality,"] &c.
Art. 782. Form of indictment for counterfeiting a mark or brand.
"Did, with intent to defraud, counterfeit the brand or mark
used by the public officer appointed to inspect tobacco, [and by him to
denote that tobacco was of a good quality] by marking the said coun-
terfeit brand or mark on one hundred hogsheads of tobacco."
Art. 783. Fraudulently using a marked cask, or box, &c.
"That J. S. having in his possession [ten pipes marked, by one
of the officers of the customs of the United States in the port of New
Orleans, as containing French brandy], did, on the
of
in the year
day
at the parish of L. fraudulently
use the same for the sale of liquor of an inferior quality than that de-
noted by the said mark,"] &c.
Art. 784. Forging a written instrument.
"Did make a false instrument in writing, of which the following
is a copy, [insert copy of the instrument], with intent to injure or
defraud," &c.
Art. 785. For forging by altering.
"That A. B. on [insert the date and place] having in his power
a certain instrument in writing in the following words and [figures],
to wit, [insert copy of the instrument as it was before it was altered],
606
CODE OF PROCEDURE.
made such alterations in the said instrument as to make it appear to be
of the following tenor [insert copy of the instrument as altered] with
intent to [injure] or [defraud,"] &c.
Art. 786. When from obliteration in the original instrument it may
be difficult to prove its exact tenor, it will be sufficient, instead of
inserting the copy of the original instrument, to state, "that having
in his possession a certain instrument in writing, by which, among
other things, [he promised to pay to the said J. S. at the time men-
tioned in the said instrument the sum of one thousand dollars], [or
insert any other part of the instrument that was altered], but of
which the other contents are not sufficiently known to the jurors to
enable them to set the same literally forth, the said J. S. on the
day of
in the year
, in the parish of
L., altered the said instrument so as to change the same into an instru-
ment of which the following is a copy, [insert the copy of the instru-
ment altered], with intent to [injure] or [defraud,"] &c.
Art. 787. For forgery by writing over or on the back of a true sig-
nature.
"That J. S. having in his possession a paper on which was writ-
ten a true signature of A. B., without any legal authority and with
intent to defraud, wrote over the said signature, [or on the other side
of the paper that contained such signature], the words following, to
wit, [insert the instrument], with intent to injure or defraud."
Art. 788. For forgery by adding a signature.
That J. S. on the
"
day of
in the year
at the parish of L., having in his power an instrument in
the following words, [insert the copy of the instrument], written by
A. B. [or by some person to the jurors unknown, as the case may be],
altered the same by adding thereto the false signature of the name of
A. B. with intent to injure or defraud."
Art. 789. For forgery by altering an instrument made by the offen-
der himself.
“That J. S. having before that time made a certain instrument in
writing, of which the following is a copy, [insert the copy], deliv-
ered the same to A. B., and that on the
day of
in the year
at the parish of L., the said instrument then
being the property of [insert the name of the holder] he the said J.
S. with intent to defraud [or injure], altered the said instrument so as
to make it appear to be one of the tenor following, [insert copy of the
instrument as altered,"] &c.
Art. 790. When the forgery consists in making an instrument in
the name of a fictitious person, the indictment must be in the form
above prescribed, for "forging a written instrument" without any
special avowal that the name of the person was fictitious, and it may
be proved on the trial without such special averment.
Art. 791. Form of the charge for making an instrument with a
false date.
"That J. S. on [insert the date and place] made a certain in-
strument in writing, of which the following is a copy, [insert it],
which instrument was falsely dated, with intent to [injure] or [de-
fraud] a certain A. B. [insert the name of the person whose interest
would have been affected by the false dating of the instrument if the
same had been true,"] &c.
CODE OF PROCEDURE.
607
Art. 792. Form of charge for uttering an instrument under pre-
tence that it was the act of another.
in the year
"That J. S. on the
day of
, at the parish of L., made a certain instrument in writing,
of which the following is a copy, [insert it], and with intent to de-
fraud [uttered or passed it, as the case may be], to A. B. as the act of
another person bearing the name of J. S."
Art. 793. Form of a charge for making a note in the offender's
name on the other side of a paper containing a blank signature.
year
,
day of
"That J. S. having in his power a paper containing the true
signature of one A. B. on the
in the
at the parish of L., wrote on the other side of the
paper, containing such signature, a [promissory note or bill of ex-
change, as the case may be], purporting to be the bill [or note] of
him the said J. S. and signed with his name [or firm, as the case may
be], so as to make the said signature appear as the indorsement of the
said [bill or note], without any lawful authority and with intent to
defraud for injure."]
Art. 794. Form of charge for uttering or passing illegal instruments
in writing.
"That J. S. on the [insert date and place] having in his pos-
session, or under his control, an instrument in writing, of which the
following is a copy, [insert it], and knowing the same to be [forged]
[or to have been fraudulently made, if it be not a forgery, but is one
of those instruments the making or uttering of which, by any disposi-
tion of the Penal Code, are declared to be an offence], [uttered] or
[passed] the said instrument to one C. D. with intent to defraud."
Art. 795. For engraving a plate, or preparing implements or mate-
rials for the purpose of forging bank notes.
That J. S. on [state the date of time and place], did engrave
[or as the case may be, had in his possession] a plate, or [did prepare
paper], [a rolling press], or other implements or materials, [declaring
what they were], for the purpose of [their or its] being employed in
forging the notes of a bank [called the Bank of New York, doing busi-
ness in the city of New York], or [called the Bank of Canada, doing
business at Montreal], or [any other bank wherever situated], knowing
such purpose, and with intent to defraud."
Art. 796. For having a forged or fraudulent instrument in possession,
with intent to utter.
day of
in the year
That J. S. on the
at the
parish of L., had in his possession a certain instrument in writing, of
which the following is a copy [insert it], and knowing the same to
have been forged, [or to have been fraudulently made, if it be not a
forgery, but is one of those instruments the making or uttering of which,
by the Code of Crimes and Punishments, is declared to be an offence],
with intent to utter or pass the same, and to defraud or injure.'
Art. 797. For procuring a signature by a false reading or false inter-
pretation of the instrument.
""
"That one A. B. being a person who from infirmity or igno-
rance [as the case may be] could not read, [or who was ignorant of the
language, naming that in which the instrument was written], J. S. on
the
day of
at the parish of L., with
intent to defraud, induced the said A. B. to sign as his act a certain
in the year
,
608
CODE OF PROCEDURE.
instrument in writing, of which the following is a copy [insert it], by
falsely pretending to [read, or to interpret the said instrument, or by
misrepresenting its contents, as the case may be], so as to cause the
said A. B. to believe that the said instrument purported to be mate-
rially different in this, to wit, [state the misrepresentation, or the false
reading, or the false interpretation], contrary," &c.
Art. 798. If in the case provided for by the last preceding form, the
act was not signed but assented to in a manner that would, if there had
been no error, have made the instrument the act of the party, it must
be so stated, instead of charging that it was signed.
Art. 799. Charge for falsely substituting an instrument instead of the
one intended to be signed.
"That A. B. having the intention of signing or giving his legal
assent to a certain instrument in writing, so as to make it his act, which
was prepared by him or by his direction, and purported to be [insert
copy of it if it can be procured, if not, state the general purport thereof,
and particularly the parts in which it differed from the substituted in-
strument], one J. S. falsely and without the knowledge of the said
A. B. substituted for the instrument so intended to be signed, or legally
assented to, another instrument in the following words [insert copy,]
and by means of such false substitution induced the said A. B. to sign
[or assent to, as the case may be], the said last mentioned instrument,
with intent to defraud," &c.
Art. 800. If either of the offences, charged by the two last forms,
shall be committed by a public officer whose duty it is to record public
acts, or by a counsellor or attorney-at-law, that circumstance must be
charged.
"
Art. 801. Charge in an indictment for falsely personating another.
That J. S. of the city of New Orleans, broker, pretending to
be [J. S. of the parish of St Francisville, planter], or [pretending to be
A. B.] on the
day of
in the year
at the parish of L.
before [I. K. being parish judge of the said parish, acting as notary
public], in the name of the said [J. S. of St Francisville, or of the said
A. B. gave his assent to an act of which the following is a copy [in-
sert it], and declaring that he could not write, authorized the said notary
to record his assent, he personating the said [J. S. of St Francisville,
or the said A. B.] to the said act, with intent to defraud.”
Art. 802. Indictment for making a false schedule in case of insolvency.
"That J. S. having presented to the [district court of the first
district] a petition praying for a meeting of his creditors, in order [that
they might receive a cession of his effects], or [grant him a respite]
made a false account of his [credits], [property] or [debts] in the sche-
dule annexed to his petition, in this, that the said J. S. omitted to
place on the said schedule [a tract of land or other property, describing
it], or [a credit of a debt due to him from A. B. of one hundred dol-
lars], or [a debt due from him to C. D. for one hundred dollars], or [did
place on his said schedule a sum of one hundred dollars as due by him to
I. K. when in fact no such sum was due], and did exhibit the said false
account, in such court, as true, with intent to defraud," &c.
Art. 803. For fraudulently destroying or concealing books of ac-
count in cases of insolvency.
"That J. S. having presented his petition to [state what court],
in order to procure a meeting of his creditors, for the purpose of making
CODE OF PROCEDure.
609
to them a cession of his property, [or obtaining a respite], and obtain-
ing the relief in such cases granted by law, did fraudulently destroy [or
conceal] a certain book of accounts [or papers] relative to his estate,
which, by law, he was bound to produce for the use and inspection of
his said creditors, that is to say, one book of account called a ledger,
containing accounts from the
[or otherwise,
to
describing the book or papers destroyed or concealed."]
Art. 804. Making simulated conveyances.
That J. S. not having property of sufficient value to pay his
debts, did on the
day of
in the year
in the parish
of L., in order to prevent the property hereinafter mentioned from be-
coming liable to the payment of his debts, make an act of which the
following is a copy [inserting it], which act the jurors present was
simulated, and intended for his own use, or for that of his family."
Art. 805. If the property was personal property, and no written
conveyance was made, say, "made a verbal sale and delivery of
[describing the property], which sale the jurors present was simu-
lated," &c.
Art. 806. Form of indictment for receiving a simulated convey-
ance.
Follow the preceding form, and at the end add, "and the jurors
further present, that I. K. knowing the purposes for which the said
[conveyance,] [mortgage,] or [disposition,] was made, and that it was
simulated, received the same for the purposes aforesaid, contrary," &c.
Art. 807. For suffering fraudulent judgments.
"
day of
"
"That J. S. not having sufficient property to pay his just debts,
on the
day of
in the year
with intent to defraud
his creditors, or some one or more of them, did voluntarily suffer a
judgment to be entered in the [parish court of the parish of L.] in fa-
vour of one I. K. the sum of by which the [real property of the
said J. S. in the said parish was bound] and [personal property belong-
ing to him was seized], which judgment the jurors present was for a
sum not due, or for a larger sum than was really due, contrary," &c.
Art. 808. For recovering such judgment.
"That one J. S. being on the
in the year
at the parish of L., not having sufficient property to pay his
debts, I. K. in collusion with the said J. S. and with intent to defraud
the creditors of him the said J. S. or some one or more of them, did
recover a judgment in the parish of L. for the sum of
which was
voluntarily suffered to be entered by the said J. S. with intent to de-
fraud his creditors, or some one or more of them; and the jurors further
present, that the said I. K. recovered the said judgment for a sum not
due, or for a sum larger than was due from the said J. S., and that
[real property of the said J. S. has been incumbered], and [personal
property belonging to him has been seized], under the said judgment."
Art. 809. For conveying without consideration to defraud creditors.
[Beginning as in the last form.] "Did without any consideration [or
for an inadequate consideration,] [convey,] [mortgage,] or [affect by an
onerous condition, stating it,] all that [describe the property sold, mort-
gaged, or affected,] to one I. K.”
Art. 810. For receiving such conveyance.
[Add to the last preceding form, "which [conveyance,] [mortgage,]
4 B
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CODE OF PROCEDURE.
or [onerous condition,] the said I. K. did on the day and year last
aforesaid, at the place aforesaid, receive, he then well knowing the
said fradulent intent.”
CHAPTER XIII.
Forms of indictments for offences affecting public property held for
common use.
Art. 811. Form of indictment for maliciously breaking levees.
"Did maliciously break down the levee, or embankment of the
river Mississippi, opposite to the plantation of A. B. in the said parish."
Art. S12. For impeding navigation by embankments, &c.
"Did make a certain wharf [or other construction, describing
it, in the bed of the river Mississippi, opposite to the lands of A. B.
in the said parish, by which the navigation of the said river was imped-
ed, [or which was made contrary to an ordinance of the police, being
legally made on the
in the year
contrary to the laws," &c.
day of
Art. 813. For erecting obstructions in a street or public road.
,]
"Did erect a [fence,] [or dig a ditch,] [or make any other ob-
struction, describing it,] in the public road, [or street] [or square] in
the said parish, [near to or opposite the house or land of A. B., or
otherwise describing the place,] by which the public use of the said
[street,] [or road,] [or square,] was obstructed; [or did unlawfully
destroy a bridge erected on the street or public road, at (describing the
place,)] in the said parish."
Art. 814. For obstructing the banks of navigable rivers.
"Did on the [bank,] [or on the embankment,] [or the space set
apart by the police regulation on the banks of the river Mississippi for a
tow path,] erect a house, [or any other obstruction, describing it,] by
which the public use of the said [bank, embankment, or tow path, as
the case may be,] was prevented [or rendered less convenient."]
CHAPTER XIV.
Forms of indictments for offences against public health and safety.
Art. 815. Indictment for illegally carrying on a manufactory of gun-
powder.
"Did carry on a manufactory of gunpowder, [or did keep
more than ten pounds of gunpowder at one time] within three hundred
yards of a public road, [or of a dwelling house, to wit, the dwelling
house of A. B. in the said parish,] [or of land of A. B. he the said A.
B. not having permitted the said manufactory to be carried on,] con-
trary to the laws," &c.
Art. 816. For carrying on trade in a manner dangerous to health.
CODE OF PROCEDURE.
611
day of
"That J. S. [being a manufacturer of parchment in the parish
of L., did on the
in the year
in the parish aforesaid, suffer the water, in which the skins used in the
said manufactory are soaked, to remain and putrefy,] in a manner
injurious to the health of those who reside in the vicinity of the said
manufactory, contrary," &c.
Art. 817. For adulterating liquors in a manner injurious to health.
"Did adulterate, for the purpose of selling the same, [one pipe
of wine intended for drinking,] by mixing therewith a substance called
[sugar of lead] which rendered the said wine injurious to the health of
those who should drink thereof."
Or
"Did sell to one A. B. [one pipe of wine which had been
adulterated with (as in the foregoing form)] knowing the same to be
adulterated."
Art. 818. For adulterating drugs.
"Did fraudulently adulterate, for the purpose of selling the
same, a certain quantity, to the jurors unknown, of a drug [called
quinquina or Peruvian bark, or jesuit's bark,] by mixing therewith a
quantity of bark of the oak tree in the said drug, [or to make the same
injurious to health."]
Art. 819. For selling adulterated drugs.
"Did sell to one A. B. one ounce of a drug or medicine called
quinquina or jesuit's bark, or Peruvian bark, which had been fraudulent-
ly adulterated by mixing therewith a quantity of bark of the oak tree,
in such mannner as to lessen the efficacy [or change the operation] of
the said drug, [or to make the same injurious to health."]
CHAPTER XV.
Charges in indictments for offences against morals and decency.
Art. 820. Keeping a disorderly house.
"That J. S. on several days between the
day of
day of
in the parish of L., did keep a disor-
and the
derly house for the purpose of public prostitution.”
Or "Did [keep a public tavern, or a house for the sale of spiritu-
ous liquors, without having the license required by law."]
Or
day of
in the year
That J. S. having a license for keeping a tavern in the par-
ish of L., [or for the sale of spirituous liquors by retail,] did on the
and at divers other times
afterwards, in the parish of
permit [here insert the act forbid-
den by the license or by law to be done in the town,] in the said tavern."
Or That J. S. having a license to keep a gambling house in the
parish of L., did on the
in the year
day of
and at divers other times afterwards, permit [insert the act forbidden
by the license or the law to be done in the gambling house."]
Art. 821. For publishing obscene prints or pictures.
Did [make, publish, or print, as the case may be,] a certain
obscene [print] [or picture] which [was shown to the said J. S. on his
examination, if the defendant was arrested or summoned previous to the
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CODE OF PROCEDURE.
finding of the indictment,] is now exhibited to the said jurors and will
be produced on the trial of this indictment, but which cannot be decently
described in words, and which was manifestly designed to corrupt the
morals of youth."
Art. 822. On the examination of any one accused of this offence, the
print or picture must be exhibited to the defendant on his examination,
and marked by the magistrate and others, so as to be identified, and
shall also be exhibited to him in court previous to his arraignment.
Art. 823. Form of charge on an indictment for an obscene written or
printed composition.
"Did [make,] or [publish,] or [print] an obscene composition
[of which the following is a copy,] which composition the jurors pre-
sent was manifestly designed to corrupt the morals of youth."
Art. 824. For making an obscene exhibition of the person in public.
"Did in the public-highway to a number of persons then pre-
sent designedly make an indecent exhibition of his person, or [of the
person of A. B.] whereby the modesty of those present was offended,
contrary," &c.
Art. 825. For uttering obscene expressions with intent to insult one
of the female sex.
"Did in the presence and hearing of one or more persons of the
female sex, with design to insult them, utter divers obscene expressions
as follows, [repeating them,] contrary," &c.
Art. 826. For seducing a woman under promise of marriage.
"That A. B. being a woman of good chaste reputation, at the
parish of L. one J. S. addressed her with proposals of marriage, which
the said A. B. received favourably, and the said J. S. thereupon made a
promise that he would marry the said A. B.; and under the faith of
that promise, on the
day of
in the year
, at the parish
of L., seduced her, and afterwards failed to comply with his said pro-
mise."
Art. 827. For soliciting prostitution.
"Did for hire received from one A. B. procure the means of
illicit connexion between him and a certain woman named C. D. [or a
certain woman to the jurors unknown."]
Or, when all the parties are unknown, state, "did for hire procure
the means of illicit connexion between two persons of different sexes,
to the jurors unknown."
Or, did for hire [solicit] [or procure] a woman [namned A. B.] or [a
woman to the jurors unknown,] to prostitute her person to a man named
C. D. [or to a man to the jurors unknown."]
Art. 828. For adultery against the wife and the person with whom
the crime is committed.
of
"That Anne B. being the lawful wife of C. D. on the
in the year
J
at the parish of
day
committed adultery
with J. S., and so the jurors present the said Anne B. and C. D. did
together commit the offence of adultery."
Art. 829. For adultery by the husband.
in the year
9
"That A. B. being the lawful husband of C. D. did on the
day of
at the parish of L. commit adul-
tery with one E. F. and did during the time he so committed the said
offence, keep the said E. F. as his concubine in the house with his said
wife; [or did, by ill-treating his said wife, force her to leave the house
CODE OF PROCEDURE.
613
in which he resided, and did, after her departure, keep the said E. F.
as his concubine in it."]
Art. 830. For violating a place of interment for the purpose of steal-
ing.
"Did open the [grave,] or [vault,] or [tomb,] in, which the dead
body of one A. B. had been interred, with the intent of stealing the
coffin or vestments with which the said A. B. had been interred, [or
some article, describing it, which was interred with the said body."]
Art. 831. For removing a dead body for the purpose of exposure or
dissection.
"Did, without legal authority, remove from the [grave,] or
[vault,] or ['tomb,] in which it had been interred, the dead body of one
A. B. for the purpose of selling, or exposing, or dissecting the same."
Art. 832. For purchasing, selling, or dissecting a dead body before
interment.
Did purchase the dead body of one A. B. from C. D., or from
certain persons to the jurors unknown; [or did sell the dead body of
one A. B. to C. D. or to a certain person to the jurors unknown,] before
the said body was interred."
Att. 833. For dissecting a dead body before interment.
"Did, without being authorized in any manner provided by law,
dissect the dead body of one C. D. which had not been interred."
CHAPTER XVI.
Of the forms of indictments for offences which affect persons in the
exercise of their religion.
Art. 834. For restraining the free exercise of religion by force or
threats.
"Did by FORCE [or THREATS, stating of which kind,] prevent
A. B. from attending divine service in the Protestant Episcopal Church,
which attendance was a lawful act required by the Protestant Episcopal
religion, which the said A. B. professed."
Art. 835. For maliciously preventing the free exercise of religion.
——“That A. B. being a person professing the [Roman Catholic re-
ligion, and being confined by sickness to his bed, was desirous of having
the sacraments of that religion administered to him by C. D. a priest of
that church, and had a note written to him requesting his attendance for
that purpose, but that one J. S. maliciously destroyed the said note be-
fore it was delivered to the said C. D. with intent to prevent the said
A. B. from doing the lawful act of receiving the said sacraments, which
was required by the religion professed by the said A. B."]
Art. 836. For forcibly obliging another to perform religious rites.
"Did by force [or threats of injury to person or property, sta-
ting what the threats were,] oblige or endeavour to oblige one A. B.
[to receive the communion according to the rites and ceremonies of the
church."]
Art. 837. If the offender be a judicial or executive officer, and the
act be done under colour of his office; or if he be a priest, or minister,
614
CODE OF PROCEDURE.
or preacher of any religious sect or congregation, the fact must be sta-
ted in either of the preceding forms in this chapter.
CHAPTER XVII.
Of the forms of indictments for offences affecting reputation.
Art. 838. Charge for slander, charging a crime.
"Did in the presence of sundry persons make the following false
and defamatory allegation of one A. B.-' he is the man who murder-
ed C. D.'—intending thereby to convey the idea that the said A. B.
had committed the crime of murder."
Art. 839. For slander, by signs, imputing the vice of habitual drunk-
enness.
on the
day of
—————“That J. S. being in company with A. B., I. K., and others,
in the year
, at the parish of L., [a dis-
course arose of and concerning persons addicted to the vice of habitual
drunkenness, whereupon the said J. S. in order to make it falsely be
believed that the said I. K. was guilty of the said vice, raised his right
hand to his mouth as if in the act of bringing a glass to his lips, and at
the same time, unperceived by the said I. K., with the other hand point-
ed him out to the observation of the persons there present; and the
jurors further present, that the said A. B., one of the said company,
asked the said J. S. whether the said I. K. was a drunkard, to which
question the said J. S. nodded his head in the manner usually done to
give an assent,] and that by the said signs the said J. S. did falsely im-
pute to the said I. K. the vice of [habitual drunkenness] in order to cause
his society to be avoided by people in general.'
""
Art. 840. For a libel, by painting, imputing a crime.
"Did make and publish a certain engraved and printed picture,
by and in which a figure, intended to represent one I. K., was repre-
sented as [picking the pocket of another of a purse, thereby intending
to convey the idea and make it be believed that the said I. K. had com-
mitted the crime of stealing from the person], which picture or engrav-
ing is annexed to this indictment."
Art. 841. To every indictment for libel by a PICTURE, the same
shall be annexed to the indictment, and shown to the party accused
before his arraignment, in the manner and for the purpose set forth in
the chapter of this Code respecting indictments, unless such picture was
painted on a building, or on some article too bulky to be brought into
court, or has been destroyed by some other means than the act of the
prosecutor, or by his procurement.
Art. 842. For a libel charging moral guilt.
"Did make and publish [or circulate, as the case may be], a
certain writing of and concerning one I. K. in the words following,
[of the character of this Mr K. you may judge from this circumstance,
that he was treasurer of a charitable society in New Orleans last year,
and that a Flemish account was given of the funds;' meaning thereby
that the said I. K. had appropriated to his own use the funds of some
charitable society that were entrusted to him as treasurer thereof."]
CODE OF PROCEDURE.
615
Art. 843. For a libel imputing a mental defect that would cause the
society of the party to be avoided.
"Did make, publish, and circulate a certain writing concerning
one I. K., printed in the public paper [called the Daily Gazette,] in
the words following, to wit: [ To Mr I. K.—I should be surprised at
your conduct if I did not know the unhappy state of your mind; that
no intimacy can render any man safe in your society; that you abuse
and defame, according to your caprice, every man who has the misfor-
tune to associate with you, without provocation and without mercy.""]
Art. 844. Where the charge is direct, as in the last form, there is no
need of any explanatory allegation; where the words, importing the
charge, are not perfectly clear, or their application is not apparent, the
meaning must be alleged. The Code of Evidence gives rules as to the
cases and manner in which those allegations are to be proved.
Art. 845. Injury to reputation by exhibiting an effigy.
"Did, with the intent to bring I. K. into contempt, and to ex-
cite ridicule and indignation against him, exhibit [or make with intent
that it should be exhibited] an effigy or figure intended to represent the
said I. K."
Art. 846. If more than twelve persons are collected to witness the
exhibition and refuse to disperse, they may be indicted as an unlawful
assembly, by adding to the above form, "And that the said J. S. [the
person above indicted] and A. B., C. D., and others to the jurors un-
known, were unlawfully assembled to aid each other in making the
said unlawful exhibition. And in case they refuse to disperse, the
indictment may be for a riot, by adding to the charge of an unlawful
assembly the following: "And the jurors further present, that the
persons so unlawfully assembled, then and there committed a riot, by
remaining together for the purposes aforesaid half an hour and more
after they had been warned by a magistrate to disperse in the form
required by law."
Art. 847. For injury to reputation by dramatic performances.
Did, with intent to bring one I. K. into contempt, and to ex-
cite ridicule and indignation against him, perform [or cause to be per-
formed] a certain dramatic work, called the Tartuffe,' in which the
said I. K. was represented or personated by an imitation of his person,
dress, manners and gestures, in such a manner as made it apparent to
those who were present, and who knew the said I. K., that he was the
person intended by such personification."
Art. 848. For combining to make a false accusation of a crime.
That J. S. and C. D. on the
>
day of
in the year
at the parish of L., did combine falsely to accuse one I. K.
of the crime of stealing; and in pursuance of such combination, they
the said J. S. and C. D. [or one of them, stating which,] did declare
[state whether verbally or in writing] that [the said I. K. had stolen
ten sheep from him the said J. S."
If the combination should be to extort any pecuniary advantage, then
insert, “Did, for the purpose of extorting some pecuniary advantage
from one I. K., combine falsely to accuse [or to threaten to accuse] the
said I. K. of the crime of stealing, and in pursuance of such combina-
tion, did, for the purpose aforesaid," &c. as above.
Art. 849. For false accusation with intent to extort.
"Did, with intent to extort money or procure some other profit,
616
CODE OF PROCEDURE.
[threaten one A. B. that he the said J. S. would accuse him the said
A. B. of the crime of rape ;] or [did falsely accuse one A. B. of having
committed the crime of rape ;] or [did falsely accuse or threaten to ac-
cuse, as charged in the preceding form,] one A. B. of [having sold the
favours of his wife, or other act that would bring him into contempt."]
Art. 850. For fabricating defamatory papers.
"Did, without any lawful authority and with intent to injure
the reputation of one I. K., publish or circulate, or make with intent.
that it should be circulated, a false writing, purporting to be a letter
written by the said J. S. in the words following, to wit, [insert copy."]
CHAPTER XVIII.
Of the forms of indictments for offences affecting the person of
individuals.
SECTION I.
Simple assaults and batteries.
Art 851. Form of indictment for a simple assault.
"That J. S. on the
day of
in the year
at the parish of L., upon one A. B. did make an assault by striking at
the said A. B. with a cane, [or in any other manner that by law will
constitute an assault, describing it."]
Art. 852. For a simple assault and battery.
"Did, with intent to injure, make an illegal assault on one A.
B. and struck him with his fist in the face, [or with a cane on the head,]
[or by throwing water in his face,] [or by pushing another person
against him,] [or by firing a pistol and wounding him with the ball, or
in any of the various ways in which this offence may be committed,
describing the act without fiction or exaggeration."]
SECTION II.
Assault and battery in relation to the person.
Art. 853. For an assault and battery against a public oflicer in the
execution of his office.
"Did, with intent to injure, make an illegal assault on one A.
B. [one of the constables of the city of New Orleans, at the time of the
said assault being in the legal execution of his office, to wit, destraining
certain goods of the said J. S. by virtue of a warrant legally issued by
G. P. one of the judges of the city court,] he the said J. S. well know-
ing the office of the said A. B. and that he was in the legal exercise of
them."
CODE OF PROCEDURE.
617
Art. 854. For assault and battery committed by an officer under pre-
tence of executing his office.
day of
in the year
in the
"That J. S. on the
parish of L., he being then and there [sheriff of the said parish,] under
pretence of executing his office by [serving a summons on one A. B.
to appear as a witness in the parish court of the parish, did make an
illegal assault on the said A. B., and with intent to injure, did seize
him by the collar and drag him in the street towards the said court."]
If, in a case where the officer had authority to use force but exceeded
the necessary degree, say, "then being sheriff of the said parish, by
virtue of his office arrested one A. B. on a warrant, [describing it,]
and although no resistance was offered to the said arrest, yet the said
J. S., under pretence of executing the said warrant, illegally assaulted
and beat the said A. B. by," [describing the assault.]
Art. 855. For assault against an ascendant—against a woman-a tutor.
"Did, with intent to injure, make an illegal assault on A. B.
the [father,] [mother,] [grandfather,] [grandmother,] [tutor,] of him
the said J. S." &c.
In the indictment for assault and battery by a man against a woman,
no particular averment is necessary, the names, and the relative per-
sonal pronouns used in the indictment are a sufficient indication of
the sex.
SECTION III.
Assault and battery in relation to the place.
Art. 856. Assault and battery in a court of justice.
"Did in the parish court of the parish of L. make an assault.”
Art. 857. Assault and battery committed in the house of another.
"Did go to the house of one I. K. with the intent of commit-
ting an assault and battery on one A. B. then residing in the said
house as [a guest,] and did then and there, in pursuance of such in-
tent, illegally and with design to injure, make an assault on the said
A. B." &c.
Art. 858. Assault and battery in a church during the celebration of
public worship.
"Did, during the celebration of public worship in the [Catholic
church,] with intent to injure, make an illegal assault in the said church
upon one A. B. &c. whereby the congregation of [Catholics] was dis-
turbed in the performance of their worship, or religious rites and cere-
monies."
SECTION IV.
Assault and battery in relation to the intent.
Art. 859. Assault and battery with intent to murder or ravish.
_______ Did, with intent to commit the crime of [murder] or [of rape,]
make an assault," &c.
4 C
618
CODE OF PROCEDURE.
•
Art. 860. With intent to dismember or inflict a permanent injury.
"Did, with intent to dismember one I. K. by cutting off his
ears, make an assault on him the said I. K., and with a penknife made
several cuts in his head and cheeks."
Art. 861. If the intent be to disfigure, say:
"Did make an illegal assault upon one A. B. with intent to
disfigure him by slitting open his nostrils, and in attempting the said
injury did wound the said A. B. in several parts of his face."
Art. 862. If the intent be to do a permanent injury, not amounting
to dismembering or disfiguration, say:
"Did make an illegal assault upon one A. B. and with design
to inflict a permanent injury by [laming the said A. B. in the right leg,
did attempt to cut the tendons of the said leg with a knife."]
Art. 863. If the design of the assault and battery, or the assault
alone, be to commit any other crime than murder or rape, such intent
must be specified in the same form as is given above for an assault with
intent to commit those crimes.
Art. 864. For assault and battery with intent to force another to
commit an offence.
"Did make an illegal assault on one A. B. with intent to force
him to commit the crime of theft by stealing the horses of a certain C.
D., and did beat and wound the said A. B. and threaten to kill him
unless he would consent to commit the said crime."
Art. 865. For an assault and battery on a woman, attended with
immodest words or actions.
"Did make an illegal assault upon one Anne B., and did ac-
company the said assault by words and gestures calculated to wound
the modesty of the female sex, and by violently laying his hands on the
said Anne.' ""
Art. 866. If, in the case stated in the last form, the offender was
tutor or curator and the person injured was his ward, or if the offender
was schoolmaster and the person injured was his scholar, those circum-
stances must be stated, thus:
That J. S. on the
day of
in the year
2
at
the parish of L., was the tutor [or curator] of Anne B., a minor; [or
was the schoolmaster of Anne B., employed to teach her reading and
writing,] [or music,] [or any other art or any science,] and that on the
day and year and at the place aforesaid, the said J. S. made an assault
upon the said Anne," &c. as in the last form.
Art. 867. For an assault or battery with intent to dishonour or pro-
voke a duel.
"Did make an illegal assault and battery upon one A. B. by
pulling his nose with intent to dishonour the said A. B. [or to force the
said A. B. to accept or to give a challenge to fight a duel.”]
SECTION V.
Forms in assaults aggravated by the degree or the manner.
Art. 868. For assault by design and with a deadly weapon.
------“Did, in consequence of a premeditated design to [wound and
CODE OF PROCEDURE.
619
otherwise ill-treat one A. B.] [or to disfigure, or to dismember, or to
inflict a permanent injury, stating particularly the design,] make an
assault upon him the said A. B. with a deadly weapon, to wit, [with a
sword,] and did wound the said A. B. in the arm.
Art. 869. For assault and battery by premeditated design, but not
with a deadly weapon.
1
"Did, in consequence of premeditated design to beat and ill-
treat one A. B. [or to disfigure, or dishonour, stating the intent par-
ticularly,] make an illegal assault upon the said A. B. [and with a cane
struck and bruised him in his face and head."]
Art. 870. If the offences, described in the preceding forms of this
section, be committed by lying-in-wait, that circumstance must be
charged, thus:
"Did, in consequence of a premeditated design [to beat and ill-
treat, or to disfigure or dismember, or to dishonour, &c.] lie-in-wait for
the said A. B. and make an illegal assault," &c.
Art. 871. Assault and battery, attended by disfiguration, dismember-
ing, or other permanent injury, when no design to inflict that degree
of injury is proved.
"Did make an illegal assault upon one A. B. and with design to
injure him did [strike,] or [thrust,] or [cut the said A. B. with a
sword, state the nature of the injury and the weapon,] so that the said
A. B. in consequence of such battery was dismembered by the loss of
[or losing the use of] an [eye, a leg, or other members, stating which ;]
or was [disfigured by a large wound, leaving a scar under the right eye,
which drew it from its natural position, or otherwise, stating how or
[did receive such injury in his right leg as makes it certain that he
will, for the rest of his life, be lame,] or such bruises in his chest as
renders it probable that he will labour for the rest of his life under the
infirmity of weakness in the lungs, or other permanent bodily hurt,
describing it."]
SECTION VI.
Forms of indictment for false imprisonment.
Art. 872. Form of indictment for false imprisonment by assault.
"Did illegally and intentionally detain one A. B. in [the
high-way, or other place, describing it], by making an assault on him
with a drawn sword opposed to his breast, by which the said A. B.
was illegally prevented from moving from the place where he then
was, by the just fear of death or great bodily injury, for the space of
one hour."
Art. 873. By actual violence.
"Did illegally and intentionally detain one A. B. in [describe
the place] by [violently seizing him by the collar with his hands, or
by binding him with a rope,] [describing the manner of the deten-
tion], and kept the said A. B., so detained as aforesaid, for the space
of [two hours."]
Art. 874. By some material impediment to the power of locomotion.
Did illegally and intentionally detain and imprison one A.
B. in [a [chamber] or cellar, or other place in the said parish], by
620
CODE OF Procedure.
F
locking or barring the doors and windows of the said [chamber] when
he the said A. B. was therein, in such a manner as to prevent him
from leaving the said place, and kept him so imprisoned for the space
of [ten days."]
Art. 875. By threats.
"Did illegally and intentionally detain one A.
the place] by threatening, that if he should leave
[naming it] he would [describe the threat], and by
threats did detain the said A. B. in the said
of [six hours," &c.
•
B. in [describe
the said place
means of such
for the space
Art. 876. False imprisonment may be charged to have been in-
flicted when such is the case, by a combination of all the means´ stated
in the preceding forms; and may also be joined in the indictment
with all the different kinds and degrees of assault and battery, stating
therein the forms above given.
SECTION VII.
False imprisonment aggravated by the purpose or the degree.
Art. 877. Indictment for false imprisonment and conveyance out
of the state.
"Did illegally and intentionally detain one A. B. [by making
an assault on him with a drawn sword, or other weapon, or by seizing
him with his hands, or any of the other modes above described] and
did forcibly convey the said A. B., so imprisoned, out of this state to
[the city of Natchez], or [to some place to the jurors unknown."]
Art. 878. If the charge be an intent to convey out of the state,
after stating the imprisonments as above, add :
Did keep the said A. B. in form aforesaid during the space
of [two days] with intent to convey him by force out of this state,
[to the Havanna], or to some place without this state to the jurors
unknown."
Art. 879. Form of charge in an indictment for detaining a free per-
son as a slave.
"Did, &c. [charge the imprisonment according to the fact in
either of the above forms, and add], and did detain the said A. B. in
form aforesaid during the space of [two days] for the purpose of keep-
ing or disposing of him as a slave, he the said J. S. knowing the said
A. B. to be free."
Art. 880. For false imprisonment used as the means of forcing
another to commit an offence.
"Did illegally and intentionally detain one A. B. [for the
space of
] by [insert the means] with the intent to force the
said A. B. to [aid the said J. S. in forging bills of the bank of B. or
any other offence, describing it."]
Art. 881. For false imprisonment with intent to commit an offence.
-[After the charge of the false imprisonment, as in the above form,
"with the intent to [rob the said A. B., or to murder, or any
other crime describing it."
say,
Art. 882. If the intent of the imprisonment is to force a woman to
do an immodest act, after the charge of the imprisonment, as above,
CODE OF PROCEDURE.
621
add, "with intent to force the said A. B. to do some act, or submit
to some treatment, injurious to the modesty of her sex."
Art. 883. In the case provided for by the last form, if the person
accused be the tutor, curator, or schoolmaster of the party offended,
it must be specially so stated in the form, prescribed in the fourth
section of this chapter.
Art. 884. Form of indictment when the imprisonment was legal,
but used with the intent set forth in the two last forms.
"That Anne B. on the
"
in the parish of
day of
in the year
having been guilty of a [mis-
demeanor, or crime, stating it], or [having threatened injury to any
one, or done any other act (stating it) which would justify a complaint
and accusation,] one J. S. procured a warrant to be issued against the
said Anne B. by G. P. one of the justices, &c. for the said offence,
and caused her to be arrested and imprisoned thereon, with intent
and for the purpose of," &c. as in the last form.
SECTION VIII.
Forms of indictment in cases of abduction.
Art. 885. Indictment for false imprisonment and abduction.
"Did, [state the false imprisonment according to the forms
in the preceding section, and add,] with the intent to force the said
A. B., by means of such detention, to consent to a marriage with the
said J. S. or with a certain I. K."]
Art. 886. Abduction of a female under fourteen years.
"Did take and carry away from the care, superintendence,
and custody of her [father,] [mother,] [tutor,] [or other person hav-
ing legal charge of the minor, stating his quality with respect to her,]
one Anne B. a female minor, under the age of fourteen years, without
the consent of the said [father, &c. or other person having legal charge
of the said minor], and [without the consent of the said Anne B., if
such be the case], with the intent of marrying the said Anne B., [or
keeping her as a concubine], [or inducing her to prostitute her per-
son to others."]
SECTION IX.
Forms of indictment in cases of rape.
Art. S87. Rape by force.
"Did make an assault upon one Anne B., and her, against her
consent, did by force and violence carnally know."
Art. 888. Rape by menace.
"Did ravish one Anne B., and against her will did carnally
know her by threatening her with instant death, [or with putting out
her eyes, or other great bodily harm, stating it."]
Art. SS9. Rape by fraud.
"Did approach one Anne B. she then being asleep, [or the room
622
CODE OF PROCEDURE.
in which she lay, she being in bed, being dark, or state such other
circumstances as favoured the fraud,] and causing the said Anne B.
to believe that he the said J. S. was her husband, the said Anne B.
thus fraudulently did ravish and carnally know."
Or, “Did designedly administer to one Anne B. a certain drug
or substance, to the jurors unknown, [or called ], by which an
unnatural sexual desire was produced in the said Anne B. [or by which
she was thrown into such stupor or weakness as weakened or prevented
resistance], and while she was under the influence of the said drug or
substance, her the said Anne did ravish and carnally know."
SECTION X.
Forms of indictment for procuring a miscarriage or abortion.
Art. 890. For procuring without the consent of the woman, by
violence.
"That on the
,
day of
in the year
2
at the parish
of
one Anne B. being pregnant, J. S. of the same place, with
intent to procure the said Anne to miscarry of the child with which
she was then pregnant, without her consent or knowledge, did cause
her to swallow a certain drug or substance called or [did apply
to her body a certain substance called ,] or [did by violence and
against her consent forcibly compress the body of the said Anne], and
by those means caused the said Anne to miscarry of the child of which
she was then pregnant."
Art. 891. If done with the consent of the woman, the above form
may be used, substituting only the words "with her consent," for the
words" without her consent or knowledge."
Art. 892. For furnishing the means, knowing the purpose.
The same form as above. Instead of charging that he did cause
her to swallow," &c. say, "did furnish to her [to be taken with her
consent], [or to J. S. to be administered to the said Anne B. without
her consent or knowledge,] a certain drug or substance called
which was taken [or applied] by [or to] the said Anne B., and caused
her to miscarry of the child of which she was then pregnant, he the
said J. S. knowing the purpose to which the said drug or substance was
intended to be applied."
Art. 893. For furnishing the means when they fail in their effect.
As in the last preceding form to the words which was taken [or
applied] by [or to] the said Anne B.," after which add, "for the pur-
pose of causing her to miscarry of the child with which she was then
pregnant, but which failed in producing such miscarriage, he the said
J. S. well knowing, at the time of furnishing the said drug or substance,
the purpose to which it was intended to be applied."
Art. 894. If the offender be a physician or surgeon, or midwife, or
practise as such, that fact must be charged.
CODE OF PROCEDURE.
623
SECTION XI.
Form of indictment for maliciously giving a potion injurious to health.
Art. 895.
"Did maliciously cause one I. K. to swallow, or in-
hale, without his knowledge, a drug called
>
or some drug or
substance to the jurors unknown, which caused a violent change in the
usual functions of his body, [or injured his health."]
SECTION XII.
Forms of charges in indictments for homicide.
day of in the year
2
Art. 896. Indictment for negligent homicide in the first grade.
"That J. S. on the
in the
parish of L., being about to repair the barrel of a musket, believing the
same not to be loaded, but without examining whether it was loaded
or not, negligently put the breach of the said musket-barrel into a
heated furnace; and the jurors present, that the said musket-barrel was,
unknown to the said J. Š., loaded with powder and ball, and that owing
to the heat of the furnace the powder exploded and drove the ball
through the heart of one I. K. who was accidentally passing, and in-
flicted a mortal wound, of which wound, made by the said ball, the said
I. K. instantly died: therefore the said jurors present, that the said J. S.
is guilty of negligent homicide in the first grade."
Art. 897. Negligent homicide in the second grade.
day of
in the year
That J. S. on the
at the
parish of L., [caused one of his slaves to mount on the back of an unbroke
colt, for the purpose of breaking him, in the public street or high-way,
where, at the time, a number of persons were passing on their lawful
business, to the evident danger of the lives of such persons, without taking
any precaution to avoid the danger to which the said persons were ex-
posed; and the jurors present, that the rider of the said colt being unable
to govern it, the said colt ran violently against one I. K. then passing in
the said [high-way] or [street], and inflicted on him the said I. K. a
mortal bruise on the breast, of which the said I. K. afterwards, that is
to say, on the
day of
in the same year, in the parish afore-
said, died: therefore the said jurors present, that the said J. S. is guilty
of negligent homicide in the second grade.
Art. 898. For negligent homicide, in the first grade, in the attempt
to do an unlawful act.
"That J. S. on the [insert date and place], intending unlawfully
[and maliciously to kill an ox belonging to one I. K. in an unfrequented
field, fired with a rifle loaded with ball at the said ox, without having
previously examined whether any person was concealed by a bush
which grew in the said field; and the jurors present, that the said I. K.
was concealed from the view of the said J. S. by the said bush, and
that the ball discharged from the said rifle, as aforesaid, after killing
624
CODE OF PROCEDURE.
the said ox, entered the right side of the said I. K. and inflicted a
mortal wound] of which the said I. K. afterwards, on the same day
and year, at the place aforesaid, died: wherefore the said jurors pre-
sent, that the said I. K. has committed the first grade of negligent
homicide in the commission of an unlawful act."
Art. 899. Negligent homicide, in the second grade, in the commis-
sion of an unlawful act.
"That J. S. on the [insert date and place] [intending and at-
tempting to kill and steal a turkey belonging to I. K. then feeding near
the door of the dwelling-house of the said I. K. negligently fired a
fowling-piece, loaded with powder and small shot, at the said turkey,
but in the direction of the window of the said house, and that some of
the shot, so fired from the said fowling-piece, passed through the win-
dow and inflicted a mortal wound on the right temple of A. K. a
female child of the said I. K., aged five years or thereabouts, of which
wound the said A. K. afterwards, on the same day and year and at the
place aforesaid, died]: therefore the jurors present, that the said J. S.
hath committed the second grade of negligent homicide, in the [attempt]
to do an unlawful act.
وو
Art. 900. In all indictments for homicide, in doing or attempting to
do an unlawful act, the circumstances of such unlawful act must be de-
tailed with as much precision as if the indictment were for doing such
act; and also, it must be stated whether the unlawful act were accom-
plished, or only attempted, because it is from a knowledge of these
circumstances only that the court can determine the degree of the
offence and the manner of punishment.”
Art. 901. Indictment for manslaughter.
That J. S. on the
day of
in the year
"
at the
parish of L. under the immediate influence of sudden passion, arising
from an adequate cause, did [strike one I. K. on the head with a bar
of iron, and did thereby inflict a mortal wound, of which the said I. K.
afterwards, on the same day and year, and at the parish aforesaid,
died] wherefore the said jurors present, that the said J. S. the said
I. K. then and there unlawfully did kill and slay."
Art. 902. Charge in an indictment for murder.
day of
in the year
2
in the
That J. S. on the
parish of L. with a premeditated design to kill one I. K. made an as-
sault upon the said I. K. and with a dirk inflicted a mortal wound on
the left breast of him the said I. K., of which wound he the said I. K.
afterwards, on the
in the year aforesaid, at the place
last aforesaid, died: wherefore the said jurors present, that the said
J. S. the said I. K., in manner aforesaid, with a premeditated design,
did kill and murder."
day of
Art. 903. Indictment for infanticide.
"That J. S. on the [insert date and place], in order to conceal
the birth of a male child, born on the
in the year
day of
of [insert the name of the mother], or [if the person accused is
the mother, say, of the said J. S.] did, with a premeditated design to
kill, expose the said child to the inclemency of the weather in an un-
frequented field in the said parish, on the night of the said
day of
and left the said child so exposed during the whole of the said
night, of which exposure the said child, on the same night, died: where-
CODE OF PROCEDURE.
625
fore the said jurors present, that the said J. S. the said male child did,
in manner aforesaid, with premeditated design, kill and murder."
Art. 904. For assassination to conceal a crime.
———“That J. S. [insert date and place] having committed the crime
of robbery by violently and fraudulently taking from the person of
A. B. against his will, one gold watch and fifty Mexican dollars, in
order to conceal the said crime, with premeditated design to kill, did
make an assault on the said A. B. and by discharging a pistol, loaded with
powder and ball and buckshot, against the head of him the said A. B.,
with the said ball and buckshot, inflicted a mortal wound under the
right eye of the said A. B., of which wound the said A. B. afterwards,
on the
died therefore the jurors say, that the
said J. S. the said A. B. did, in manner aforesaid, with a premeditated
design, kill, murder, and assassinate."
day of
Art. 905. Assassination in the commission of a crime.
day of
at the
"That J. S. on the
in the year
parish of L., for the purpose of committing the crime of robbery of one
I. K. by violently and fraudulently taking from the person of the said
I. K., against his will, one gold watch, did, with premeditated design
to kill, make an assault upon one A. B. who then and there endea-
voured to prevent the said robbery, and with a sword inflicted a mortal
wound on the right side of the said A. B." &c. [as in the preceding
form.]
Art. 906. Assassination for the purpose of obtaining an inheritance,
and by hiring to murder.
"That J. S. being the next of kin to one I. K. for the purpose
of obtaining the inheritance of the said I. K. on the
"
day of
in the year
did hire P. L. and N. O. for a reward promised to
them by the said J. S. to kill the said I. K. and that the said P. L. and
N. O. agreed to murder and assassinate the said I. K. for the said hire,
and in pursuance of such agreement on the night of the day last afore-
said, entered the bed-room of the said I. K. and did make an assault
upon him the said I. K. there lying in his bed, and the said I. K. with a
pillow pressed by them on his face did suffocate, of which suffocation
the said I. K. then and there died: wherefore the said jurors present,
that the said J. S. and the said P. L. and the said N. O. the said I. K.
with a premeditated design then and there, in manner aforesaid, did
kill, murder, and assassinate."
Art. 907. Assassination by the means used to murder; lying-in-wait,
arson, poison.
"That J. S. on [set forth the date and place] with a premedi-
tated design to kill one Ï. K. did lie in wait for him in a wood through
which the J. S. expected that the said I. K. would pass, and did then
and there make and assault on the said," &c. [as in the preceding form.]
Art. 908. By arson.
With a premeditated design to kill one I. K., did set fire to
the dwelling-house of the said I. K. in which he the said I. K. then
was, and by means of such fire did burn and consume the said dwell-
ing-house, and by the fire and smoke caused by the burning of the said
house the said I. K. was suffocated and burned, and of which burning
and suffocation the said I. K. then and there died: wherefore the said
jurors present, that the said J. S. the said I. K. with a premeditated
design then and there did kill, murder, and assassinate."
4 D
626
CODE OF PROCEDURE.
Art. 909. By poison.
"That J. S. having the premeditated design to kill one I. K.
in the year
did, in order to effect
,
on the
day of
such design, mix a certain poison, called opium, in the soup prepared
for the dinner of the said I. K., and the said I. K. having, on the
same day and year, at
without any knowledge of such mix-
ture, swallowed a portion of the said soup with the said poison mixed
therein, by the effect of the said poison became disordered in his body,
and afterwards of such disorder, caused by the said poison, to wit,
from the day last aforesaid until the
day of
now last past,
languished, and then of the said disorder, so caused as aforesaid, in the
parish aforesaid, died: wherefore the jury present," &c. [as in the last.]
Art. 910. In charging murder and assassination by poison, it is ne-
cessary to state that the poison was taken by the deceased without
knowing that it was poison, otherwise it might amount only to a charge
of aiding in suicide, which is another offence. It is also necessary to
state the time of giving the poison and the time of death.
Art. 911. If the indictment state one kind of poison, and the proof
is death by another, it will support the indictment.
Art. 912. When any circumstance in the situation or the condition.
of the person killed gives to murder the character of assassination, it is
sufficient to state that circumstance in the indictment, after the name of
the person killed. The same rule applies as to murder under trust,
where the trust arises from the relative conditions or relationships of
the murderer with the person murdered; such condition or relationship
being stated after the name of the person accused. When the trust
arises under a special or implied promise, it must be stated thus:
day of
"That J. S. on [inserting the date and place], being [the master
of a vessel called the Fly, then bound on a voyage from New Orleans
to Havanna, took on board the said vessel, as a passenger, one I. K. and
promised to convey him (the danger of the seas excepted) from the
said port of New Orleans to the Havanna; but the jurors present, that
the said J. S. violating the trust so reposed in him, and with premedi-
tated design to kill, did, on the
last, on board the
said vessel called the Fly, then lying in the river Mississippi, within
the parish of Plaquemines, make an assault upon him the said I. K. and
by force threw the said I. K. from the deck of the said vessel into the
water in the said river, where the said I. K. sunk and was suffocated
by the said water, and then and there, in consequence of such suffoca-
tion, instantly died and was drowned:] wherefore," &c.
Art. 913. Attempt to kill by poison.
The charge is the same as that of assassination by poison, omitting
only the latter part which charges the death.
Art. 914. Charge for aiding in suicide.
"That A. B. on the
day of
day of
in the year
"
at the
parish of L., committed suicide by [swallowing a quantity of poison,
which then and there killed him]; and that J. S. before that time, that
is to say, on the
in the parish aforesaid, [procured
the said poison and gave it to the said A. B. for the purpose of enabling
him to commit the said suicide, he the said J. S. well knowing that it
was the intention of the said A. B. to destroy his own life [by swallow-
ing the said poison. ]
CODE OF PROCEDURE.
627
SECTION XIII.
Forms of indictments and other proceedings against the provisions of the Penal Code
respecting duels.
Art. 915. Using insulting words or gestures, or making an assault
to provoke a duel.
"That J. S. on [insert date and place], intending to provoke one
I. K. to fight a duel, or if the said I. K. should not fight a duel in con-
sequence of such provocation, that the said I. K. should be dishonoured,
did use the following words, speaking to the said I. K., ['you are a
coward']; or did use an insulting gesture, by [snapping his fingers in
the face of the said I. K.]; or did make an assault upon the said I. K.,
by striking him in the face with the palm of his hand, or other insult,
assault, or insulting gesture," [describing it,] &c.
Art. 916. Answers and explanations of the defendant.
"To the district court of the second district of the state of Louisiana.
“The answer and explanation of J. S. to the indictment [or infor-
mation] filed against him for using insulting words [or gestures] to
[or of] I. K., [or assaulting him, as the case may be,] with intent to
provoke the said I. K. to fight a duel, or as an alternative to disho-
nour him-this defendant saith, that the [words or gestures, as the
case may be,] charged in the said indictment were used [in the heat
of passion, that he is truly concerned for having used them, and that
he has the highest respect for the said I. K., and never seriously
intended to impeach his courage"]-[or any other denial or explana-
tion that he may deem satisfactory.]
Art. 917. Certificate when the court is satisfied with the explanation.
By the district court of the second district, &c.
"Whereas an indictment was filed in this court, on [insert date,]
charging [insert the charge]; and whereas the said J. S. afterwards
presented to this court an answer and explanation [or acknowledg-
ment][or denial] hereunto annexed, which answer and explanation,
in the opinion of this court, ought to satisfy the honour of the said
I. K. It is therefore ordered, that the said answer be recorded and
published, together with this judgment."
CHAPTER XIX.
Forms of indictments in offences against civil and political rights
and conditions.
Art. 918. Against a nurse for substituting a child.
"That A. B. on the
,
day of
in the year
at the parish of L., confided an infant male child of him
the said A. B., aged one month or thereabouts, to J. S. of said pa-
rish, for the purpose of suckling and nursing the said child; and that
628
CODE OF PROCEDUre.
the said A. B. having been absent from the state for a long time, to wit,
for five years and upwards, the said J. S. afterwards, on the
day, of
in the year
, and at the parish afore-
said, with intent to deceive the said A. B. the [father, or mother, or
tutor, or curator], of the said child, substituted [or attempted to sub-
stitute] another child for the one confided to her."
Art. 919. For exposing an infant, under the age of six years, with
intent to abandon it.
"That A. B. having on the
>
day of
in
the year
at the parish of L., confided a [female child,
named C. B., aged two years or thereabouts, the daughter of the
said A. B.,] for the purpose of having the said child nursed and edu-
cated; [and that the said J. S. afterwards to wit, on the
in the year
day of
in the parish aforesaid, ex-
posed and deserted the said child in a wood in the said parish], where
the life of the said child was greatly endangered, with the intent the
said child then and there wholly to abandon," &c.
Art. 920. Against the father or mother for exposing an infant, with
intent to abandon it.
·
That J. S. being the [father] [or mother] of an illegitimate
male child, born of the said J. S. [or, if the indictment be against the
father, born of one J. S.] on the
"
day of
in the
year
at the said parish, did, on the day and year and at the
place aforesaid, expose and desert the said child in a certain highway
where the life of the said child was endangered, with intent wholly to
abandon the said child.' ""
Art. 921. For fraudulently producing a child with intent to intercept
an inheritance.
"That A. B. of the parish of L., long before and on the
in the year
day of
was the owner
and possessor of a large real and personal estate in this state, and
that the said A. B. on the day aforesaid, had only two descendants,
to wit, C. and D. his sons; and that the said C. on the day last afore-
said died without leaving any legitimate descendants, whereby the
said D. became the presumptive heir to the said A. B.; and the ju-
rors present, that one J. S. afterwards, to wit, on the
day
of
in the year
, at the parish aforesaid, with de-
sign to intercept half of the inheritance of the said A. B. from the
said D. fraudulently produced an infant male child, falsely pretending
that the said infant was the legitimate child of the said C. deceased,
and which child would, if he had really been the legitimate child of
the said C., have stood in the order of succession to the inheritance of
the said A. B. equally with the said D."
Art. 922. If the offence be committed against a collateral presump-
tive heir, and the child produced be alleged to be a descendant, the
charge must be "of a design to intercept the whole inheritance."
Art. 923. For making a false entry on register of births.
"That J. S. on [insert date and place] being then minister of
the Protestant Episcopal Church in the parish of L. and charged with
keeping the register of marriages for the members of the said church,
did fraudulently make a false entry on such register, falsely register-
ing therein that on the
in the year
day of
A. B. was married to C. D. by him the said minister,
}
CODE OF PROCEDURE.
629
[or by I. K. formerly minister of the church], with intent to injure
one E. F. in her condition and civil rights [as legitimate wife of the
said A. B."]
Art. 924. For bigamy.
"That J. S. on the
, at the parish of
day of
in the year
being then married to Anne, the
daughter of J. B., and the said Anne being then living, contracted
another marriage with C. D. of the said parish, according to the form
required to give validity to marriages in this state, he the said J. S.
having, at the time of his contracting the said second marriage, no
reasonable cause to believe that the said Anne, his wife, to be dead."
1
CHAPTER XX.
Forms of indictments for offences affecting private property.
SECTION I.
Forms of indictments for burning and other malicious injuries to property.
Art. 925. For maliciously setting fire to a dwelling-house or other
property.
That J. S. on the
2
day of
in the year
at the parish of L., did maliciously set fire to a dwelling-
house belonging to [or inhabited by] one I. K. with intent to destroy
the same," &c.
Art. 926. If the house be not a dwelling-house, but contains pro-
perty of the value of one hundred dollars, it must be thus described :
"a certain house belonging to [or occupied by] I. K., situated in the
same parish, containing personal property of the value of one hundred
dollars."
If the house be empty, and be not a dwelling-house, it must be de-
scribed as a "house."
Art. 927. For destroying a house with gunpowder or other explo-
sive matter.
Did maliciously place gunpowder [or other explosive matter,
designating it,] under [or in] a certain house, [or a house containing
personal property of the value of one hundred dollars,] [or a dwelling-
house] belonging to [or occupied by] I. K. situated in the said parish,
and put fire to the said gunpowder [or other explosive matter] thereby
causing the same to explode, with intent to destroy the said house," &c.
Art. 928. The above forms answer for the offence of setting fire to
the other objects which the Code of Crimes and Punishments makes it
an offence to set fire to, adding a charge of the value.
Art. 929. When bodily injury is suffered by any one, by the com-
mission of the offence of malicious burning of a house or other property,
or the offence be committed in the night, or if the buildings contain
any domestic animals, those circumstances must be added to the charge.
Art. 930. For the destruction of a ship or other vessel, or raft, by fire.
630
CODE OF PROCEDURE.
"Did, designedly and with intent to injure, illegally set fire to
[or destroy by explosion of gunpowder, stating the manner,] a certain
boat, [raft, schooner, or other vessel, describing it,] with the cargo on
board, [if any, describing it,] being, together with such cargo, of the
value of one hundred dollars."
Art. 931. For the malicious destruction of property by other means
than by fire.
Did maliciously destroy a certain boat, commonly called a
pirogue, with the cargo, consisting of fifty hogsheads of sugar, being then
and there in the exclusive possession of one I. K., and being, together
with such cargo, of greater value than ten dollars, by boring a hole in
the bottom of the said pirogue and sinking it in the river Mississippi."
Art. 932. For fraudulently removing a land-mark.
day of in the year
"That J. S. on the
at the
parish of
did fraudulently [or maliciously, as the case may be,]
remove a [cypress post] which had been placed to serve and did then
serve as a land-mark to designate the boundary between two parcels of
land in the said parish, the one in the possession of [the said J. S.] and
the other of the said tracts in the possession of one A. B."
SECTION II.
Forms of indictments for house-breaking.
Art. 933. House-breaking by force, in the night.
"That J.IS. on the night of the
day of
in the year
, in the parish of L. about the hours of eleven, by force, entered
into a house occupied by I. K. in the said parish, with intent to steal,
[or burn the said house, or to commit murder, or any other crime,
naming it."
Art. 934. For entering in the day and concealment until night.
"That J. S. on the
day of
,
at the
in the year
parish of L., entered, in the day-time, secretly and fraudulently into
the house of one I. K. situated in the said parish, and concealed him-
self in the said house until the night of the same day, with the intent
to steal," &c.
Art. 935. For entering by discharging fire-arms or throwing a stone.
"Did, with intent to do a bodily injury to one I. K. then being
in a certain house [occupied by him the said I. K.] in the parish afore-
said, discharge a pistol, loaded with gunpowder and a ball, into the said
house, through the door thereof; [or throw a stone through the window.
of the said house, or other missile, as the case may be."]
SECTION III.
Forms of indictments for the forcible or fraudulent acquisition of property.
Art. 936. For a fraudulent breach of trust.
“That J. S. on [insert date and place] having before that time,
CODE OF PROCEDURE.
631
1
at the parish of Point Coupee, received [ten bales of cotton, belonging
to one I. K.] of the value of fifty dollars each, [to be carried by him
the said J. S. from the said parish of Point Coupee to the said parish of
L. to be there delivered to one A. B.] did, on the day and year and at
the place first above mentioned, fraudulently appropriate the said [ten
bales of cotton] to his own use.
""
Art. 937. When the property was received on a contract of loan, or
letting or hiring.
"That J. S. on [state the date and place] received from one I.
K. on a contract of letting and hiring a certain [bay horse with a gig, of
the value of ] to be used by him the said J. S. for the purpose
of conveying him to the Bayou St Johns in the said parish, and to be
returned to the said I. K. on the same day; and the jurors further pre-
sent, that the said J. S. did not on the said day return the said [horse
and gig] to the said I. K., but did, on the day and year and at the par-
ish aforesaid, fraudulently appropriate the said [horse and gig] to his
own use"
Art. 938. For the fraudulent appropriation of property found.
"That J. S. [insert date of time and place] found a certain [red
morocco pocket-book, containing bank-notes to the value of ‚]
which had before that time been casually lost by one I. K., and that
the said J. S. then and there knowing, or having good reason to believe,
that the said I. K. was the owner of the said [pocket-book and its con-
tents,] fraudulently did then and there appropriate the same," &c.
Art. 939. Where the finder has no reason to believe any designated
person to be the owner.
[As before to the words "lost by one I. K."]" and that the said
J. S. did then and there conceal and appropriate the same to his own
use.
""
Art. 940. For opening and reading a sealed letter.
"That J. S. [insert date of time and place] did open and read
[or cause to be read] a sealed letter, written by I. K. to A. B., he the
said J. S. not being authorized so to do by the said I. K., or the said
A. B., or by law."
Art. 941. For malicious publication-add,
"And that the said J. S. [or one C. D.] did maliciously and
without authority publish the said letter [or a part of such letter] by
printing the same in the words following, [insert the printed letter,]
which publication is hereunto annexed, he the said J. S. [or C. D.]
knowing the manner in which the said letter was obtained.'
29
Art. 942. If, in the preceding form and that immediately following,
the publication was in any other mode than by printing, there is no ne-
cessity of inserting a copy of the published letter in the indictment, or
giving any other declaration of the letter than the names of the writer
and of the person to whom it was addressed.
Art. 943. For taking and publishing a letter.
"Did take from the legal possession of I. K. without his con-
sent, a certain letter written by one A. B. to him the said I. K., and
did maliciously publish the same by printing it in the following words,
[insert copy of the published letter,] which printed letter is hereunto
annexed."
Art. 944. For obtaining property by false pretences.
"That J. S. [insert date of time and place,] did, with a fraudu-
632
CODE OF PROCEDURE.
lent intent, and by the consent of one I. K., obtain from him one pair
of silver candlesticks, belonging to him the said I. K., by falsely pre-
tending that he the said J. S. was the servant of one A. B. a person
well known to the said I. K., and that the said A. B. had sent him the
said J. S. to borrow the said candlesticks for him the said A. B.; and
the jurors further present, that the said I. K. would not have consented
to deliver the said candlesticks to the said J. S. if he had not made use
of the said false pretence.
Art. 945. For false pretences by personification.
day of
"That one J. S. with a fraudulent intent, and under the false
pretence that he was G. H. of the parish of Point Coupee, planter,
a man of great wealth and credit, on the
in the parish of L., induced one I. K. to deliver to him the said J. S.
thus personating the said G. H., five hundred yards of raven's duck
and ten pieces of Scotch plains, which he falsely asserted were wanted
as supplies for the plantation of the said G. H. whom he falsely per-
sonated, and the jurors present," [as in the last form.]
Art. 946. If the false pretence be that he is another person of the
same name, instead of charging the false pretence as above, say, "falsely
pretending that he the said J. S. was another person, also named J. S.
of," &c. [as in the last form.]
Art. 947. Charge for obtaining goods on the false pretence of imme-
diate payment.
That J. S. on [insert date of time and place] with a fraudu-
lent intent, induced one I. K. to deliver to him [describe the goods]
under the false pretence that he would immediately pay the sum of
dollars for them in cash; and the jurors further present, that
the said J. S. refused to return the said goods or to pay the said sum,
although he was afterwards, on the same day and year, at the parish
aforesaid, within one hour after the delivery of the said goods, requir-
ed so to do." [If the demand was made after one hour, state, although
he was afterwards, to wit, on
same year,] [stating some time within three days of the delivery] re-
quired so to do, the said goods then being in the possession of the said
J. S.; and the jurors further present, that the said I. K. would not have
consented to deliver the said goods if the said J. S. had not made the
said false pretence of immediate payment in cash, &c.
the
day of
Art. 948. For giving a check of no value in payment.
in the
"That, J. S. on [insert date of time and place] purchased from
one I. K. [insert description of property] and with intent to defraud,
did give to the said I. K. in payment for the said property a check or
draft, drawn by him the said J. S. [or by A. B.] on the bank of
payable on demand for the sum of
which he the said J. S.
falsely pretended and affirmed would be paid at sight, he the said J. S.
then and there well knowing that the said check or draft then was of
no value; and the jurors further present, that the said check was of
no value, and that the said I. K. would not have delivered the said
property if the said J. S. had not made the said false and fraudulent
pretences, contrary," &c.
Art. 949. For false pretences by producing false papers.
"That J. S. being desirous of purchasing one hundred bales of
fair Louisiana cotton from one I. K., with a fraudulent design to induce
him to sell the said cotton at a low price, produced a writing which he
CODE OF PROCEDURE.
633
falsely pretended was a Liverpool price current [or letter from C. &
Co. of Liverpool] dated the
day of
last, in which
false paper [or writing] it was stated that the price of fair Louisiana
cotton, on the day of the date thereof, was seven pence sterling per
pound; and the jurors present, that the said paper [or writing] was
false and fraudulent, and that giving credit to the false pretence of the
said J. S. he the said I. K. sold and delivered to him one hundred bales
of cotton at the price of fourteen cents a pound, which he would not
have done if the said J. S. had not made the false pretences, and by
which the said I. K. was defrauded of the sum of
Art. 950. False pretences by cheating at cards.
dollars."
That J. S. on [insert date of time and place] fraudulently ob-
tained from one A. B. the sum of
dollars at a game of [skill
and chance called whist] by means of packing the cards in such a man-
ner [as to keep in his own hand all the court cards, or other means,
describing them,] which means the jurors present were other than those
which would have been given to the said J. S. by the regular chances
of the said game, or by the fair exercise of his skill therein, he the
said J. S. falsely pretending that the said sum of money was won by
the regular chances of the said game, and the fair exercise of his skill
therein; and the jurors further present, that the said A. B. would not
have delivered and paid the said sum of
dollars if the said
J. S. had not made the said false and fraudulent pretences.
Art. 951. Charge in indictment for theft.
of the value of
That J. S. or [insert date of time and place] one piece of lace,
dollars, the property of A. B., from his poss-
ession fraudulently did take without his assent,"
Art. 952. Theft by effraction.
"That J. S. [insert date of time and place] in the day time,
with a fraudulent design, did enter into a certain house occupied by A.
B. [or ship called the Bee] and one piece of lace of the value of
dollars the property of A. B. and in his possession, then and there be-
ing, fradulently did take without the assent of the said A. B."
Art. 953. Breaking into a ship or house with intent to steal.
"That J. S. on [insert date of time and place] with intent to
commit a theft, a certain house belonging to [or occupied by] one A.
B. did break and enter," &c.
If theft be committed, add, "and one piece of linen of the value
of
belonging to the said A. B. from his possession fraudu-
lently did then and there take, without the assent of the said A. B.”
If any one were in the house or ship, then add, "and the jurors
further present, that C. D. was at the time of the said entry in the
said house [or ship,] and did resist the said J. S. [or was prevented by
fear from resisting him, as the case may be."]
Art. 954. For entering a house and stealing by breaking a chest or
box, &c.
"That J. S. on, &c. in the day time, with a fraudulent intent,
into a certain house belonging to [or in the occupation of one A. B.
did enter, and a certain box [or chest, or other enclosed place] did for-
cibly break, and a piece of gold coin, then in the said box, belonging to
A. B., being found, did fraudulently take, without the assent of the
said A. B."9
وو
4 E
634
code of procedure.
Art. 955. For fraudulently appropriating property taken from a
wrecked vessel.
"That a certain ship or vessel, of which the name and the
owners are to the jurors unknown, was wrecked [or stranded] [or burn-
ed] on the west shore of the Lake Pontchartrain, in this state, on the
day of
in the year
in the parish of
New Orleans; and that J. S. on the day and year and at the place last
aforesaid, ten bales of cotton, driven on shore from the said wreck, did
fraudulently appropriate, knowing it to have proceeded from the said
wreck."
Art. 956. For privately stealing from the person.
"That J. S. on [insert date of time and place] one [gold watch
of the value of fifty dollars, belonging to and in the possession of I.
K.,] privately from the said I. K. did fraudulently take, without his
assent."
Art. 957. For robbery.
"That J. S. [date, &c.] from the person of one I. K. by force
and against his will, one gold watch of the value of fifty dollars, be-
longing to him, did fraudulently take."
Art. 958. For robbery by threats of violence.
"That J. S. [date, &c.] from the person of one I. K. one hun-
dred gold coins of the United States, called eagles, belonging to him
the said I. K. did fraudulently take, and did force the said I. K. to de-
liver by threatening the said I. K. [to accuse him of the crime of rape];
or [to burn the house of the said I. K.]; or [to assassinate him] or [to
do any other injury to his person, property, or character, describing
:."]
ךיי .it
Art. 959. For receiving property, knowing it to be fraudulently ob-
tained.
"That J. S. on [date &c.] did fraudulently receive [or did
fraudulently conceal or endeavour to conceal] one gold watch, belong-
ing to one I. K. of the value of fifty dollars, which had been fraudu-
lently taken [or obtained] from him by [theft,] or [fraudulent breach
of trust,] or [by the fraudulent appropriation of property found,] or
[by false pretences,] he the said J. S. well knowing that the said pro-
perty had been so fraudulently taken [or obtained."]
Art. 960. For attempts to defraud by threats.
"That J. S. with a fraudulent intent did, on [insert date, &c.]
threaten one I. K. that he would [set fire to the dwelling-house of] him
the said I. K. if he the said I. K. did not [give him a sum of one hun-
dred dollars,] or [did not procure for him the place of under-sheriff of
the parish], as the means of avoiding the execution of the said threat.”
Art. 961. If the threat be of injury to person or reputation, or any
other injury to property than the one above specified, it must be par-
ticularly set forth.
Art. 962. If the threat be in writing, it must be in the following
form:
"That J. S. on [insert date, &c.] did, with a fraudulent intent,
make an instrument in writing, and send the same to one I. K., which
instrument is in the words following, to wit: [Mr. I. K., if you wish.
to avoid the burning of your house, or the infamy of having made an
attempt to suborn a witness, you will do well to enclose a bank-note
for one hundred dollars, by post, directed to A. B. at L.'-meaning
CODE OF PROCEDURE.
635
thereby to demand of the said I. K. the sum of one hundred dollars
as the means to avoid the destruction of the house of the said I. K. and
an accusation of having attempted to suborn a witness to commit per-
jury, contrary," &c.
Art. 963. For writing a malicious threatening letter, without any
design to defraud.
"That J. S. [insert date] maliciously intending to vex and dis-
quiet one I. K. wrote [or caused to be written and sent or delivered,
as the case may be,] to the said I. K. a certain writing, in the words
following, to wit, [insert the letter."]
CHAPTER XXI.
Forms of indictments for conspiracy.
Art. 964. Conspiracy to rob and murder.
"That J. S. and N. O. on [insert date] fraudulently intending
to rob and murder one A. B. agreed together, or with other persons
to the jurors unknown, [according to the fact] [that the said N. O. he
being then and there a domestic servant of the said A. B. should ad-
mit the said J. S. at midnight, on some subsequent day into the house
of the said A. B., and that they should then and there strangle and kill
the said A. B. in his bed, and should carry off and steal all the money
and other valuable property found in the said house."]
Art. 965. Conspiracy to make a false accusation.
That J. S. and N. O. on [insert date] intending maliciously
to injure one A. B. agreed together, or [with others, as above,] that
they the said J. S. and N. O. would accuse the said A. B. of having
committed the crime of rape upon one C. D., they the said J. S. well
knowing that the said A. B. was innocent of any such crime.'
Art. 966. Conspiracy to lower wages.
""
"That J. S., N. O. and L. M. on [insert date] being master-shoe-
makers in the said city of New Orleans, entered into an agreement and
combination with each other, and with other master-shoemakers in the
said city to the jurors unknown, that they would give to the journey-
men shoemakers, whom they should severally employ, no more than
[the sum of for each day's work, or for each pair of shoes, &c.
stating the substance of the agreement; and if any penalty be imposed
by the agreement for a breach of it, state the same particularly."]
Art. 967. Conspiracy to raise wages and abridge the time of labour.
"That J. S., Ñ. O. and R. P. being persons usually working as
journeymen in the trade of shoemaking, did, on [insert date] enter into
an agreement and conspiracy to and with each other, and to and with
divers other persons to the jurors unknown, that they would not work
at their said trade unless they were paid at the rate of for each
pair of shoes, and for each pair of boots, or
for each day
they should work at their said trade; [or that they would work only
ten hours for a day's work;] [state, as above, the substance of the agree-
ment, and if it contained any penalty for a breach of it, or any pro-
ceeding to oblige others to enter into the conspiracy, state the same."]
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CODE OF PROCEDURE.
•
Art. 968. The agreement is the offence, but if any thing be done in
consequence of it to carry it into execution (as if the penalty imposed
by the agreement be enforced, or any injury be offered to others to
force them to join in the conspiracy,) it should be stated, that the court
may apportion the punishment.
Art. 969. Conspiracy to raise the price of flour.
“That J. S. and I. K. being merchants dealing in the purchase and
sale of flour, on [insert date] did enter into a conspiracy and agreement
to and with each other, and to and with other persons to the jurors
unknown, that they would purchase each of them one thousand barrels
of flour, and would not sell the same for less than twelve dollars for
each barrel, [insert the conditions of the agreement and the penalty, if
any, for its breach."
CHAPTER XXII.
Forms of indictments against principals who become such by aiding
or encouraging the act, against accomplices and accessaries.
Art. 970. Whenever any one, who hath not himself committed the
offence, hath made himself a principal by any of the acts enumerated
in the third article of the fifth chapter of the first book of the Code of
Crimes and Punishments, he is a principal in the second degree, and
he may be indicted jointly with the one who personally committed the
offence, or separately; but, in either case, the commission of the offence
and the act which made the abettor liable, must be stated according to
the truth; but if he be present at the act, it will be sufficient to state,
that he was so, and that he aided or encouraged the others, without
stating in what manner particularly.
Art. 971. The person becoming liable, as a principal, under the pro-
visions of the above recited article, may be indicted, tried, and punished,
although the one who personally committed the offence should have
escaped, or be acquitted, or pardoned, but the commission of the offence
must be proved.
Art. 972. Indictment against principals in the first and second de-
gree, jointly, for murder.
day of
in the year
"That J. S. on the
at the
parish of L., with a premeditated design to kill one I. K., made an as-
sault upon the said I. K., and with a dirk inflicted a mortal wound on
the left breast of him the said I. K., of which wound he the said I. K.
afterwards, on the same day and year, at the place aforesaid, died : and
that L. M. during the time that the said J. S. was committing the said
offence stood at a short distance from the place where the said murder
was committed, knowing that the said J. S. was engaged in the perpe-
tration thereof, and with the intent to keep watch and give notice to
the said J. S. of the approach of any one who might interrupt the com-
mission of the said offence; whereupon the jurors aforesaid present, that
the said J. S. and L. M. the said I. K. in manner aforesaid did kill and
murder, contrary," &c.
Art. 973. Indictment against the principal in the second degree alone.
CODE OF PROCEDURE.
637
•
"That, &c. [insert the charge against the person who actually com-
mitted the offence, according to the forms prescribed for such offence,
then add,] and the jurors aforesaid do further present, that L. M. at
the time the said offence was committed was present [and by words
and gestures did encourage the said J. S. to commit the said offence,
he the said L. M. well knowing the unlawful intent of the said J. S.
in committing the said offence."]
Art. 974. Indictment against an accomplice for having committed
the offence, &c.
"That, &c. [state the offence, according to the proper form, and
then add,] and the jurors further present, that L. M. before the said
offence was committed, to wit, on the
day of
in the year aforesaid, at the parish aforesaid, did unlawfully advise,
command, and encourage, [or did agree to aid,] or [did promise the
· sum of
dollars to,] or [offer his interest in procuring the
office of sheriff of the county of L. for,] or [did prepare and furnish
the pistol to, &c. as the case may be,] the said J. S. in order to induce
him to commit the said offence.
Art. 975. Indictment against an accessary.
"That, &c. [state the offence, according to the proper form, after
which add,] and the jurors aforesaid do further present, that L. M.
well knowing the said J. S. to have committed the said offence as
aforesaid, afterwards, to wit, on the
day of
in the year aforesaid, at the parish of L. did conceal the said J. S. or
aid him, in order that he might effect his escape [from arrest, or
trial, or the execution of his sentence, as the case may be."]
CHAPTER XXIII.
Of informations.
Art. 976. Form of an information by the attorney-general, or dis-
trict attorney.
"Be it remembered, that on the
>
day of
in
the year
in the criminal court of the state of Louisiana,
came J. P, attorney-general of the state of Louisiana, and gives the
said court to be informed, that," &c. [as in an indictment.]
Art. 977. After an information has been filed, the prosecution can-
not be dismissed but by leave of the court, on motion of the public
prosecutor, who must state his reasons for such motion, which motion
with the reasons must be entered on the minutes of the court, together
with the decision of the court on such motion whether it be allowed
or rejected.
Art. 978. All the provisions respecting indictments in this Code
apply to informations in cases where by law they may be filed, un-
less the contrary is expressed or results from the nature of the two
modes of proceeding.
638
CODE OF PROCEDURE.
CHAPTER XXIV.
Of joining different offences and persons in the same indictment,
and of different courts, for the same offence.
Art. 979. No indictment can contain a charge for more offences than
one, under the modification hereinafter in this chapter contained.
Art. 980. The practice of inserting different charges or counts in
an indictment for the same offence, is abolished; but where there is
evidence before a grand jury sufficient to prove a fact which is an
offence, and the evidence renders it doubtful whether it was done
with one or the other of several intents, either of which would aggra-
vate the offence, the jury may charge the intent in the alternative,
and the accused may be convicted on the proof of either on the trial.
Art. 981. Form of indictment charging the intent in the alternative.
"That J. S. on &c. [insert date] at the parish of L., upon one A.
B. did make an assault by seizing the said A. B. by the throat with
his hands and striking him, &c. with the intent either to murder the said
A. B. or to disfigure him, or to do a permanent injury by laming
him," &c.
Art. 982. In cases of libel it will be sufficient to charge in the
indictment that the defendant "made," "published," or "circu-
lated," the libel; and proof of either, according to the definition of
those terms in the Penal Code of Crimes and Punishments, will be
sufficient. In like manner, an indictment will be good which charges
that the defendant either made the counterfeit coin, or a forged instru-
ment, or had the same in possession, with intent to pass, (in cases
where such possession is made an offence); or that he knowingly
uttered or passed the same, naming the person to whom.
Art. 983. In indictments for all offences against private property
in which, according to the forms herein before prescribed, it is necess-
ary to aver the name of the owner or possessor of the property, it
will be sufficient to state in the alternative that either A. B. or C. D.
was such possessor or owner; and in like manner, proof of either will
be sufficient.
Art. 984. The several persons may be joined in the same indict-
ment in the following cases:
The person who gives and he who receives a bribe.
The principal, the accomplice, and accessary.
The suborner and the perjurer.
The employer and the actual assassin, (in cases of assassination for
hire.)
The adulteress and her paramour.
Joint rioters, conspirators, and all others who jointly commit an
offence.
Art. 985. Although several be joined, yet each defendant may de-
mand and have a separate trial, except in case of adultery, as is before
provided for.
CODE OF PROCEDURE.
639
CHAPTER XXV.
Of the mode of making the charge in cases of repetition of the
offence.
con-
Art. 986. That the party accused has been before convicted of an
offence of the same nature may be stated in the indictment ´accord-
ing to the following form: after the charge of the offence add, "and
the jurors do further present, that the said J. S. was heretofore in
the court of [state the court] in or about the year
victed of [state the offence, and if he was more than once convicted,
state the same in like manner, and conclude,] wherefore the said ju-
rors present, that the said J. S. hath [a second or third time] com-
mitted an offence affecting [private property, according to the nature
of the offence."]
Art. 987. If the prior convictions are discovered after the time of
finding the indictment, but before the trial, the public prosecutor may
give notice to the defendant, at any time before the trial, that he will
give evidence of such conviction, specifying the offence and the time
as is above set forth, and shall then be allowed to give such evidence.
Art. 988. If the prior conviction be discovered after conviction,
whether sentence be passed or not, the record of the conviction shall
be received by the court, and the defendant shall be brought up and
required to show cause why the additional punishment should not be
inflicted, which he may do by denying that he is the person formerly
convicted. If the identity is denied, it shall be tried by a jury, and
the burthen of proof shall be on the public prosecutor.
A CODE OF EVIDENCE.
4 F
INTRODUCTORY TITLE.
Art. 1. The Code of Evidence, which is applicable as well to civil
as to criminal cases, will direct judges, other magistrates, ministers of
justice and jurors, what proof is sufficient to commit, to indict, and to
convict an offender, against the Code of Crimes and Punishments.
•
Art. 2. Where, in this Code, examples are given to illustrate certain
rules of evidence, they are never intended as an enumeration of all the
cases coming within such rules. When a limitation to certain enume-
rated cases is intended, it is unequivocally so expressed.
Art. 3. The substantive word judge in this Code means the power
which has the right of deciding on the subject matter to which the
article in which it is used applies; it may, according to the subject, mean
either the magistrate, the jury, or the arbitrator or referee.
Art. 4. All the rules of evidence which are laid down to regulate
the introduction and declare the effect of proof adduced on the principal
matter in dispute in judicial investigation, apply also to the introduc-
tion and effect of the same kind of proof on any incidental question,
except when it is otherwise expressly provided.
Art. 5. Particular provisions in this Code control general rules, but
in the particular case only in which they are introduced.
Art. 6. By the expression "immoveable estate," or "immoveables,"
is meant all that is made such by destination or provision of law, as
well as by nature.
Art. 7. When the word "evidence" is used in this Code, it always.
means "legal evidence," as herein defined.
Art. 8. In all cases whatever where any thing is declared to be legal
evidence, it must be understood to be with the proviso that it is applica-
ble to the issue or fact in litigation. Whether so applicable or not
(when there is no express provision) it is left to the discretion of the
court to determine. But in the exercise of this discretion great liber-
ality must be used, and no legal evidence excluded that has even a
remote application to the question.
Art. 9. If in any criminal case the provisions of this Code, for the
admission or exclusion of evidence, shall in the opinion of the court
be found to have operated unjustly; and in consequence thereof any
one is convicted, judgment shall not be pronounced until after the re-
port has been made to the legislature, in the manner hereinafter pro-
vided. But if such provision shall operate, in the opinion of the court,
in favour of the accused, who shall, in consequence of evidence ad-
mitted or excluded conformably to such provision, be acquitted, judg-
ment of acquittal shall be rendered: and in either of these cases (as well
as in civil cases, where a verdict has, in the opinion of the court, been
644
CODE OF EVIDENCE.
unjustly given in consequence of evidence admitted or excluded con-
formably to such provision) a full report shall be made to the legisla-
ture of the case, together with the reasons of the court for thinking the
particular provision unjust or inexpedient; and if the legislature shall,
at the first session after the report, make the alterations, in substance,
as suggested by the court, a new trial shall be given in the civil suit,
and to the party convicted in a criminal cause; otherwise judgment shall
be given on the verdict.
Art. 10. If in the trial of any cause a question shall arise, relative to
the admission of evidence for the decision of which no provision is
made in this Code, the court shall decide according to such principles
as they believe the legislature would have been guided by had the case
been foreseen; and shall, in like manner, report the case and their de-
cision, with the reason thereof, to the legislature. And although the
legislature should amend this Code in consequence of such representa-
tion, or should omit so to do, it shall not affect the decision if it be
made in a civil cause.
Art. 11. But if the case provided for by the last preceding article
be a criminal one, and the principle adopted by the court shall have
admitted or excluded evidence, to the prejudice of the accused, which
evidence would not have been so excluded or admitted as the Code
now stands, and the accused shall, in consequence thereof, be convicted,
no judgment shall be had on such conviction, but the defendant shall
be discharged.
Art. 12. The last three preceding articles relate only to questions on
the admissibility of evidence; all questions, as to its credit and weight,
when admitted, must be decided by the judge or the jury, to which-
ever the fact is submitted, except in cases of evidence declared by law
to be conclusive.
CODE OF EVIDENCE.
645
BOOK I.
OF THE NATURE OF EVIDENCE, AND OF ITS SEVERAL KINDS.
TITLE I.
GENERAL PRINCIPLES AND DEFINITIONS.
Art. 13. Evidence is that which brings or contributes to bring the
mind to a just conviction of the truth or falsehood of any fact asserted
or denied.
Art. 14. From the above definition it results that judges of fact, ex-
cept in cases of proof declared to be conclusive, are not bound to decide
in conformity with the declarations of any number of witnesses, which
do not produce conviction to the mind, against a less number, or against
presumptions which do satisfy the mind.
Art. 15. A conviction produced by evidence, which ought not, ac-
cording to the rules of true reason, to have that effect, is not a just
conviction. But different minds may have different conceptions of what
is true reason; the law, in order to secure uniformity of decision on this
point, declares what evidence ought, in given cases, to produce, or con-
tribute to produce such conviction, and that evidence is called legal
evidence.
TITLE II.
DISTRIBUTION OF THE SUBJECT.
Art. 16. LEGAL EVIDENCE, in relation to its nature, is of two kinds:
that which the judge receives from his own knowledge, and that which
he derives from other sources; the latter is either testimonial, scriptory,
or substantive.
TESTIMONIAL EVIDENCE is that which is offered by the relation of
any other person, whether communicated to the judge orally or in
writing.
SCRIPTORY EVIDENCE comprehends all written evidence other than
the declarations of witnesses reduced to writing.
SUBSTANTIVE EVIDENCE is that which is produced by the exhibition
of any object which from its nature, situation, or appearance, creates a
belief of the truth or falsehood of the allegation in dispute.
646
CODE OF EVIDENCE.
Art. 17. Evidence being different in the degree of effect which it
ought to produce, is therefore divided into three kinds : presumptive
evidence, direct evidence, and conclusive evidence.
Art. 18. Presumptive evidence is that, which by directly proving
one fact, renders the existence of another fact probable.
Art. 19. Direct evidence is that, which if true, conclusively establishes
or destroys the proposition in question.
Art. 20. Conclusive evidence is that, which by law is declared to be
such proof of that which it asserts, as cannot, while it exists, be con-
tradicted by other testimony. The law does not and cannot in this case
command belief; but on the exhibition of certain evidence it does com-
mand such decision, as would be the result of a belief in the existence
of the fact which such evidence purports to prove.
Art. 21. These degrees may be produced by either of the kinds of
evidence above enumerated; the actual inspection or perception of the
judge, the declaration of witnesses, the exhibition of written proof, or
of substantive evidence. The law under each of these divisions is de-
clared in the subsequent titles.
Art. 22. Every offence being in this system clearly defined and
directed to be distinctly charged in the act of accusation, all rules of
evidence applicable to one, are applicable to all; therefore, in criminal
cases, whatever constitutes the offence, whether act, omission, or intent,
must be supported by such LEGAL EVIDENCE as proves the allegation.
Art. 23. So in civil cases, all fictions being in like manner discarded,
and the demand and defence being required to be set forth according to
the truth, the same rules of evidence are applicable to all actions.
Art. 24. It results from the two preceding articles, that no provisions
are necessary in this Code to designate what evidence is required or
permitted in each kind of action or division of offence.
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CODE OF EVIDence.
BOOK II.
OF THE RULES APPLICABLE TO THE SEVERAL KINDS OF EVIDENCE.
TITLE I.
OF THE EVIDENCE OFFERED TO A JUDGE FROM HIS OWN KNOWLEdge.
Art. 25. Under some circumstances the judge is allowed to frame his
decision upon the conviction brought to his mind by means of his own
senses without the intervention of any other proof. But he can do this
only in cases particularly provided by law; these are especially desig-
nated in the different codes of this system.
Art. 26. In all other cases than those so specially provided for, the
judge hears the testimonial, sees the scriptory, or the substantive, evi-
dence, and must decide (not from his knowledge, but) from the convic-
tion produced on his mind by this evidence.
Art. 27. The power given to a magistrate to arrest when an offence
is committed in his presence; to a judge, to determine on the authenti-
city of a record, to order the removal of a person who interrupts the
proceedings of a court, and the authority given to the magistrates to
determine when the military may be directed to act in support of the
civil power, are examples of cases in which the judge is empowered to
act on evidence derived from his own knowledge.
Art. 28. In all other cases where facts material to the decision of the
cause have come to the knowledge of the judge, and he is not specially
authorized to act on such knowledge, he must state the facts in open
court under oath, and is liable to cross-examination like any other wit-
ness. When there is but one judge, and the fact is to be tried by the
court, if the testimony of the judge is necessary, the cause shall be tried
by the judge of an adjoining district in the manner provided for in cases
where the judge is interested.
Art. 29. Jurors are not permitted to act on the evidence of their own
knowledge. Whatever has come to the knowledge of either of them,
must be stated under oath in open court.
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CODE OF EVIDENCE.
TITLE II.
OF TESTIMONIAL EVIDENCE.
Art. 30. Rules for procuring the personal attendance or the writ-
ten testimony of witnesses, are contained in the Codes of Civil and
of Criminal Procedure. This chapter directs what persons may be pro-
duced as witnesses to what points they may be examined, and the
mode of conducting the examination.
CHAPTER I.
What persons may be examined as witnesses.
Art. 31. The only persons who, under all circumstances, are ex-
cluded from giving testimony are:
1. Those who are of INSANE MIND at the time of examination.
2. Children under fourteen years of age, whose faculties do not
appear to be sufficiently developed, to receive correct impressions of
the fact relative to which they are interrogated, to relate those impress-
ions correctly, and to feel the obligation of doing it truly.
Art. 32. Whether a child under the age of fourteen has attained the
intellectual powers required by the preceding article, or whether the
person offered as a witness be of sane mind or not; must be determined
by those who are to decide on the principal fact in question between
the parties, and to come to such determination, they must examine the
person who is offered as a witness, and other witnesses if it be deemed
necessary. If the trial is by a jury, a majority shall determine whether
a witness objected to for either of these causes shall be examined.
Art. 33. The circumstances and cases in which certain persons other-
wise permitted to testify, are excluded from giving testimony, are the
following:
1. A slave is not admitted to testify in any case but one in which
another slave is prosecuted for some offence; but the declaration of a
slave is received as a complaint in the manner directed by the Code of
Criminal Procedure.
2. A counsellor or attorney at law shall not be interrogated to dis-
close any fact that has come to his knowledge by communication from
his client. But this rule is subject to the following limitations and
explanations: viz.-It shall apply only to facts which were communi-
cated to the counsellor or attorney for the purpose of conducting or
defending some judicial proceeding pending, or apprehended. It shall
not apply to any other person than a licensed counsellor or attorney,
although the purpose of the communication may be the defence or pro-
secution of a suit.
3. A priest of the Catholic religion shall not be forced to reveal any
thing which he knows only by its being confided to him in religious
confession by his penitent.
CODE OF EVIDENCE.
649
|
CHAPTER II.
Of the different modes of taking testimonial evidence.
Art. 34. Testimonial evidence may be exhibited in three different
forms:
By affidavit.
By oral examination.
By written deposition or interrogation.
SECTION 1.
Of testimony by affidavit.
Art. 35. In all cases in which the affidavit of the party or a witness
is by the Code of Civil or Criminal Procedure, allowed as a sufficient
ground for the issuing of any process order, or other judicial proceed-
ing, the party making such affidavit may be cross-examined by the
party opposed in interest before the judge of the court from which such
order or process issues, and evidence may be produced to disprove the
facts stated in such affidavit.
Art. 36. In order to carry the preceding article into effect, if no in-
justice will in that particular case be suffered by the delay, the judge
shall require reasonable notice to be given to the opposite party of the
time and place of examination, together with a copy of the affidavit
before the order or process shall issue.
Art. 37. If the judge shall be of opinion that the ends of justice will
be defeated by delay or by giving the notice required, he may, if the
proof warrants it, give the order required; but shall, at a proper time,
cause the notice required by the last article to be given, and if by the
cross-examination of the deponent or the production of opposite proof,
the alleged facts shall be disproved, the order shall be rescinded, and
the party who has obtained it shall pay the costs and damages sustained
by the other party in consequence thereof, to be awarded by the court,
or by a jury if either party require it.
Art. 38. Notice shall be given to every person making an affidavit,
or swearing to the truth of any pleading or paper whatever to be used
in any judicial proceeding, before the oath is administered, that he will
be liable to cross examination, and that he subjects himself to the pen-
alty of perjury if the statement be designedly false; and the magis-
trate who administers the oath shall give such notice and insert in the
certificate of attestation the words "after the notice required by law,"
or words to that effect, under the penalties prescribed by law for a
neglect of duty.
Art. 39. It is the duty of every magistrate who shall administer the
oath of attestation to any affidavit, to inquire of the deponent whether
he has read the same; and if the answer be that he has not, or can-
not read, then to cause him to read, or to have it read to him distinctly,
and after giving the notice required by the last article, to cause him to
sign his name, if he can write, and if he cannot, then to make a mark
4 G
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CODE OF EVIDENCE.
at the foot of the said affidavit, opposite to which the magistrate shall
write the name of the deponent.
Art. 40. The oath or affirmation to all affidavits shall be according
to the form prescribed by the Code of Procedure, with additions re-
quired by this section.
SECTION II.
Of the examination and attestation of those who are parties to judicial proceedings in civil
causes.
Art. 41. All fictions being expressly discarded from the judicial pro-
ceedings of this state, no party to a suit shall be permitted to make
any allegation of fact in a court of justice of which he is not willing
to declare his knowledge or belief under oath. Therefore, all peti-
tions, or answers intended to be used in any suit, and containing any
allegation of fact, or the belief of any fact by the party in the suit on
whose behalf such petition or answer shall be exhibited, shall be sworn
to in the form prescribed for affidavits by the preceding section, and
the same notice shall be given that the party is liable to cross examin-
ation and the penalties of perjury in case of wilful falsehood.
Art. 42. In addition to the discovery directed to be mutually furnish-
ed by the parties in answer to interrogatories, as provided by the laws
regulating the practice of the courts in civil cases, (or in lieu thereof)
any party to a suit may summon another party or any one having an
adverse interest and being within the state, fo attend the trial in order
to be examined touching the matters in controversy; and if such party
be not within the state, or do not attend, the same proceedings shall
be had either to procure the deposition of the said party, or to put off
the trial, as are directed with respect to witnesses who are absent or
refuse to attend.
Art. 43. The deposition of any party to the pleadings, or his an-
swers to interrogations or on oral examination in court, shall have no
other force than the judge or jury who try the fact shall deem it enti-
tled to; therefore, that part of the present law which directs that to
countervail such testimony drawn from the party, the oath of two wit-
nesses, or of one witness with circumstantial evidence shall be necessary,
is repealed.
Art. 44. In every trial where the parties, or either of them, have
appeared, whether in pursuance of such provisions or not, he or they,
at the request of the opposite party, or of any juror, or by direction
of the judge for his own satisfaction, may be sworn to answer such pro-
per questions as shall be put to him or them relative to the matter in
dispute.
Art. 45. On the trial of any cause, if the judge or a majority of the
jury shall deem it necessary to form a true decision after hearing the
testimony, that any party not present shall be examined, the trial shall,
at the discretion of the court, be postponed, and the usual measures
taken for obtaining the attendance or the deposition of the party upon.
interrogatories, to the point deemed to be important by the judge or
the jury as aforesaid. All questions pertinent to the matter in dispute
may be put to a party examined in the manner aforesaid, which might
be put to a witness.
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651
Art. 46. When any party to a suit shall be examined in pursuance
of the provisions of this section, the same rules shall be observed for
conducting the examination as are laid down for the examination of
witnesses by the third section of this chapter.
Art. 47. This section relates exclusively to civil causes.
}
SECTION III.
To what points and in what manner witnesses may be examined.
Art. 48. If the witness be a Catholic priest, he shall not be interro-
gated for the purposes of revealing any thing that has been confided to
him by confession; but he may be examined as to knowledge obtained
from any other source.
Art. 49. The counsellor or attorney employed by the defendant or
assigned to him by the court, shall not be interrogated for the purposé
of revealing any thing that he knows only by its being communicated
to him by his client in relation to the cause in which he is employed,
and for the purpose of conducting or defending the same, or for the pur-
pose of procuring professional advice on some lawful occasion. What
he knows in any other manner, although it may also have been com-
municated by his client, or what he knows by communication from his
client, before he became his counsellor or attorney, or at any time, if
the fact so communicated have no relation to the cause or matter in
which it was communicated to him, he shall be obliged to declare
whenever the question is otherwise pertinent.
Art. 50. If it should become material in any suit to require informa-
tion of a fact which it would be dangerous to the public safety to dis-
close at the time of trial, this is a good cause for postponing the trial
until such danger shall cease.
Art. 51. No witness shall be obliged to answer any questions but
such as are immediately pertinent to the issue between the parties, or
which may elucidate or establish some incidental fact necessary to be
inquired into in the cause. Questions as to the character of a witness,
and questions which, though unconnected with the merits of the case,
may be put to test the veracity of a witness, are examples of such in-
cidental inquiry. But of the pertinency of any question, the court, in
its discretion, must judge according to the circumstances of the case.
Art. 52. The constitution having provid d, "that in criminal pro-
secutions the accused shall not be compelléu to give evidence against
himself," the legislature feel themselves bound to extend the same pro-
tection to witnesses in all cases, and to declare, that no witness shall be
compelled to answer any interrogatory, if the answer he would give,
would furnish evidence to justify a prosecution against him for a CRIME.
Art. 53. With the exceptions contained in the five last preceding
articles, and the restrictions hereafter put upon leading questions, all
other interrogatories may be put to any witness.
Art. 54. The rule that no one shall discredit his own witness, is
abolished. The party calling a witness may cross-examine him to test
his veracity, and call witnesses to his character in the same manner as
if he had not been called at his instance.
Art. 55. Leading questions are not permitted to be put. Such only
shall be deemed leading questions as suggest to the witness some state-
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CODE OF EVIDENCE.
ment (inconsistent with the truth,) which the party proposing the
question wishes to prove. This is a matter left to the sound discretion
of the court. But it must be so exercised as not to present suggestions
necessary to recall the facts in question to the memory of the witness,
when the transaction is remote, when from its nature it was not likely
to have made a strong impression on the mind of the witness, or when
from age or indisposition, timidity, or other cause, the mind of the
witness is weakened or disturbed.
Art. 56. The witness may, on his examination, refer to written
notes made by himself or by his direction, for the purpose of refresh-
ing his memory as to events mentioned in them; he may refer to
writings made by others for the same purpose; but in that case he must
speak from his own recollection of the fact, thus revived by the writ-
ing; not from the evidence of the writing itself; and he must in all cases
declare when, and by whom, and for what purpose, the writing to which
he refers, was made; and he shall not be permitted to refer to them
if they appear to have been made by either of the parties in the suit, or
by their direction, for the purpose of suggesting to the witness what
he ought to say.
Art. 57. In all cases where a witness is examined to prove or dis-
prove any matter of account or calculation, he must be permitted to
refer to the papers or books containing such account or calculation.
Art. 58. It is the duty of the judge to prevent any harsh or threat-
ening language to be used towards a witness for the purpose of confu-
sing or intimidating him. Reasonable time shall be given to the
witness to recollect himself before he is urged to answer. After his
testimony has been given, he may rectify any mistake in his answers,
within a like reasonable time, to be judged of by the court.
Art. 59. Whenever the testimony of a witness is reduced to writ-
ing, he may, before signing it, correct any inaccuracies which may
have been made in reducing it to writing, or any error which he may
himself have made; and such correction may be made even after
signing the deposition, within a reasonable time, to be judged of ac-
cording to circumstances by the court.
Art. 60. He who judicially alleges a litigated fact, must produce
evidence to support it, whether it be a fact in charge or discharge.
Art. 61. No fact judicially alleged by one party and in the same.
manner confessed by the other, need be proved by other evidence.
Art. 62. A fact judicially alleged by one party and neither con-
fessed nor denied by the other, must be proved by the alleging
party; but the oath of the party alleging, shall be presumptive evi-
dence, to have such weight as the judge or jury, to whichever the
fact is submitted, may think it deserves.
Art. 63. The evidence required by the preceding articles, is any
of the several kinds specified in the Code as legal evidence.
Art. 64. The judicial allegation above mentioned means the affir-
mative declaration made in the course of written judicial proceeding,
that a fact or state of things exists or has happened, on which the one
party relies to support his charge, or the other to exonerate himself
from it. An affirmative assertion of innocence amounts only to a
negation of a charge made, and is not, therefore, such an affirmative
declaration as the party making it is bound to support by proof.
Art. 65. The rule of evidence which required that the best evidence,
or as it is sometimes stated, the best attainable evidence, shall be pro-
CODE OF EVIDENCE.
evidence.
653
duced, shall hereafter operate to the exclusion of other evidence only
in the following cases:
1. When the law shall have declared that to give validity to a con-
tract, it shall be made in writing, no other proof shall be admitted of
such contract, unless it be proved that the writing required by law
was made, and that it has been casually lost or destroyed, or has
been placed, without the default of the party offering the inferior evi-
dence, out of his reach.
2. When it is proved that SCRIPTORY EVIDENCE of the matter in
question has been made, and was in possession of the party' offering
the inferior proof, unless he show that it has been casually lost or de-
stroyed, or without his default has been placed out of his reach.
3. When the legislature shall have declared certain evidence neces-
sary for the proof of designated facts.
4. When the fact alleged is one which, if true, must have appeared
by AUTHENTIC ACT.
Art. 66. In all other cases where evidence is offered, which the
judge or jury shall deem of an inferior nature to other evidence which is
not produced, such inferior evidence, if legal, shall be admitted, and the
non-production of the other shall operate only as presumptive proof
against the party failing to produce it, to have such effect as such
judge of the fact shall, according to circumstances, give to it.
Art. 67. In all cases where a writing is proved to be in the possess-
ion of the opposite party, who, on proper notice being given, does not
produce it, evidence may be given of its contents.
Art. 68. The rule established by the Civil Code, that parol evidence
shall not be admitted against or beyond what is contained in the acts,
nor what may have been said before or at the time of making them,
is to be taken with the following modifications:
1. It applies exclusively to writings, containing obligations or dona-
tions, and to testamentary dispositions.
2. Parol evidence, in all cases of written instruments, shall be ad-
mitted to prove error, fraud, violence, threats, or any other circum-
stance which, by the Civil Code, would avoid or modify a contract.
3. It may be admitted to remove any ambiguity, whether apparent
on the face of the instrument, or arising out of the application of its
terms.
4. Any one of the parties to a written instrument may be called on
by another to explain, on oath, either by parol evidence on the trial,
or by answer to interrogatories, at the option of the party making the
inquiry, any point in litigation between them, arising out of such
instrument, and that, whether the interrogation goes to contradict,
explain, or add to, or diminish the obligation specified in the writing.
Art. 69. Whenever error, fraud, violence, or threats are alleged
as reasons for setting aside a contract, the following points must be
inquired into by the judge, and considered, if he is to decide or give
in charge to the jury, in addition to the evidence of the direct fact
alleged.
1. If error is the reason alleged, the character as to caution and pru-
dence in conducting his affairs, of the party alleging that he was de-
ceived; his knowledge of the particular business which formed the
subject of the contract; the deliberation or haste with which it was
effected.
2. If the objection be fraud, violence, or threats, the character of
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CODE OF EVIDENCE.
both parties must be the subject of inquiry, as presumptive evidence
of the fraudulent or violent practices on the one side, or of a submis-
sion to them on the other.
3. In all cases of this kind, the time that has elapsed after the error
or fraud was discovered, or the violence or threats had ceased, before
the proceedings were had, or complaint made for redress, and the rea-
son for the delay, if any.
Art. 70. Parol evidence is not admitted unless the witness be under
the sanction of an oath. Therefore the witness is only to be inter-
rogated as to his own knowledge or belief, and not as to what he has
heard from others, upon whom none of the sanctions to secure veracity
could operate. This is a general rule, to which there are the follow-
ing exceptions:
1. A witness may declare what a party has said, if the testimony
be called for by the opposite party; and this extends not only to the
declarations of the actual parties to the suit, but those of the persons
under whom they claim; and also to the declarations of such agents
or other persons as could have bound them by their contracts in the
matters in contest; but no declaration of one under whom the party
claims shall be given in evidence unless it was made while such per-
son was interested, or of the agent except while he was in the employ
of the party.
2. What has been said relative to the matter in dispute by others,
in the presence and hearing of one party to the suit, may be given
in evidence by the other as a foundation for presumption to be drawn
from what was said or done by the party, or from his silence; but in
all such cases the party implicated may require that he be allowed to
explain upon oath.
3. What a witness has said before he was sworn, may be shown to
prove that it was consistent, or inconsistent, with his declaration on
oath.
4. What a witness has declared on a former trial between the same
parties for the same cause, if the witness be dead, or his testimony
cannot be procured.
5. When the declarations of a party, or a witness, are admitted
under the first or second exceptions above mentioned, any thing said.
by another person in the same conversation, which is necessary to
counteract or explain what was said by such party or witness may be
given in evidence.
6. Proof of the hand-writing of a subscribing witness to an instru-
ment who is absent or dead, may, in certain cases, be admitted on the
presumption that he would not have signed if he could not prove the
execution. To rebut this presumption, any material declaration of such
witness may be given in evidence.
7. In cases not depending on scriptory evidence, a party may give as
evidence what he himself said or did in relation to the matter in litiga-
tion at the time of the transaction on which it is founded, in order to
explain the intention with which any thing was said or done, that he is
charged with in the proceedings or by the evidence; but in this case
he may himself be examined under oath by the adverse party.
Art. 71. When the fact inquired of is one of which the knowledge is
generally acquired by information of others, or by information joined
to personal observation, forming what is usually called facts of public
notoriety, they may be stated on such information by parol evidence:
CODE OF EVIDENCE.
655
of this nature are-pedigree, boundary, births and deaths, cohabitation,
residence, profession or trade, possession with reputation of ownership,
general reputation, custom, course of trade, prescription, public histo-
rical events. In all these cases, and others of the same description, the
witness may testify, not only as to the public notoriety of the fact, but
may specify the persons from whom he has derived his information.
Art. 72. What a person, who is dead at the time of trial, has said or
done in relation to the subject in controversy, may be given in evidence,
if such act or declaration was, at the time of making it, contrary to his
pecuniary interest.
Art. 73. In prosecutions for homicide, the deposition of the deceased
may be given in evidence, or what he was heard to say after receiving
the wound, if he do not live long enough to have his deposition taken,
or if circumstances prevent its being taken.
SECTION IV.
Of evidence to the character of parties and witnesses.
Art. 74. In all criminal prosecutions the general character of the
party accused may be shown by evidence, but to such points only as
would evince a disposition or indisposition to commit the offence with
which he is charged. Thus, if the prosecution be for a battery, the de-
fendant may show that his general reputation is that of mildness and
forbearance; and on the part of the prosecution, the reverse may be
proved.
Art. 75. The general character of witnesses for veracity, or the con-
trary, may be also shown, both on the part of those who introduce them
and on the opposite part.
Art. 76. Evidence of general character may be introduced to discredit
a witness, by showing that he is habitually addicted to any vice that
evinces a disregard to moral character; such as intoxication, or that he
is a common vagrant; or if the witness be a woman, that she is a com-
mon prostitute.
Art. 77. Particular facts may also be given in evidence; but they
must be of a public and notorious nature, such as conviction for a CRIME;
but this must be proved, either by the production of the records or the
oath of the witness himself; or if the conviction took place out of the
state, by testimonial proof.
Art. 78. All facts which would show the incapacity of the witness,
either to perceive accurately, or correctly to relate, what he states, may
also be shown; such as a natural imperfection in any of the senses,
want of memory or of skill, usual inattention to subjects of the nature
of that in question, or general ignorance of them, or a temporary disa-
bility arising from disease or intemperance.
Art. 79. Any particular bias, arising from interest, affection, relation-
ship, from fear, enmity, favour, or affection, or intimate friendship to
or with either of the parties, or having had disputes with them, or being
under their control or influence in the relation of ward, servant, tenant,
debtor, or obligated by past favours.
Art. 80. The examinations of the witnesses, taken before the examin-
ing magistrate, may be produced to contradict what they may say on
the trial, or to show that they have been consistent.
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Art. 81. The depositions of such witnesses, taken in the presence of
the defendant, pursuant to the directions of the Code of Criminal Pro-
cedure, may be read as evidence, if the witness is since dead or cannot
be found in the state.
Art. 82. The examination of the defendant, taken before the examin-
ing magistrate, if made according to the directions of the Code of
Criminal Procedure, may also be produced.
SECTION V.
Of written depositions on interrogatories.
Art. 83. All the rules for receiving the oral declarations of witnesses,
apply to their examination taken in writing on interrogatories.
Art. 84. When the oral testimony of witnesses is taken down in
writing, in the cases provided by law for regulating the practice of the
courts, the question shall be taken down as well as the answer, and the
answer recorded as it is given.
TITLE III.
OF SCRIPTORY EVIDENCE.
Art. 85. Scriptory evidence is of two kinds-AUTHENTICATED and
UNAUTHENTICATED.
CHAPTER I.
Of authenticated acts.
SECTION I.
Of the different kinds of authenticated acts.
Art. 86. Authenticated acts are such instruments in writing as are
attested by a public officer, legally authorized for that purpose, in the
form prescribed by law. They are evidence of that which is attested
to have been done in his presence by the officer whose attestation gave
them validity; but of nothing more. Thus, the joint attestation of the
speaker of the house of representatives, of the president of the senate,
and of the governor, is authentic evidence that a bill has become a law
of the state. The attestation of the governor and secretary of state,
under the seal of the state, is authentic evidence that the copy to which
it is affixed is a true copy of the statute. The signature of the governor
to a proclamation issued by him, under the scal of office, to apprehend
a person accused of murder, is authentic evidence that such proclama-
tion was issued on the day it bears date, that complaints were made to
CODE OF EVIDENCE.
657
him of the commission of the crime and of the flight of the defendant,
or of any other fact which he certifies to have been done in his presence;
but it is not evidence that the crime was committed or that the party fled.
Art. 87. They are of several kinds :
1st. Legislative acts, passed by the constitutional authority, and
attested in the manner prescribed by law.
2d. Records of courts.
3d. Such records of the different branches of the executive government
as are made in the legal administration of their different departments,
and as are declared to be authentic acts.
4th. Written instruments, made in the presence of and attested by
such public officer, as is for that purpose commissioned according to
law, and purporting to testify what is said, done, or contracted, by those
whose act it is.
SECTION II.
Of legislative acis.
Art. 88. Legislative acts are proved, either by a production of the
original act deposited in the archives of the state; by a copy attested
by the signature of the person exercising the executive authority of the
state, and by the secretary of state, cr ather proper officer having the
custody of the said archives, under the seal of the state; or, by the
printed copy contained in the statute book, or the gazette printed by
the printer of the state. Provided, that on the production of either of
the said copies of a legislative act, it shall be lawful for any party,
alleging a mistake in the printed or other copy, to prove it by pro-
ducing the copy under the seal of the state, or in such attested copy,
by collating it with the original archives, and procuring, in this last
case, a correction of the attested copy; but the party alleging such mis-
take must prove it; and, until the error be shown, such copy shall be
deemed a true one, and shall have its full and entire effect.
Art. 89. There is no distinction in the mode of proof between public
and private legislative acts. The court, however, is bound to take
notice of and carry into effect all public acts which apply to the facts
before them, whether they are pleaded or offered in evidence or not;
but a party claiming a right or exemption, under a private act, must
produce it.
Art. 90. A private legislative act is one that concerns certain desig-
nated individuals only. All other legislative acts are public.
Art. 91. All acts of incorporation made for regulating the police or
local government of any particular part of the state, for the establish-
ment of banks, for authorizing the imposition of a toll, tonnage, wharfage,
or other duty, for the establishment of hospitals, or other purposes of
charity, or for the promotion of education, religion, or science, are
public acts. All other acts of incorporation are private acts.
Art. 92. The enumeration contained in the last article relates solely
to the purpose of this title: it does not affect the nature or definition of
corporations established by law.
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SECTION III.
Of judicial records.
Art. 93. Judicial records are all the written proceedings in a court
legally constituted and directed to record its decrees. They compre-
hend, not only the orders and judgments of such courts, but the written.
pleadings and allegations of parties; the proofs and documents they have
produced, when the same are made part of the written proceedings; and
the certificates and returns of the officers of such courts; the verdict of
jurors, and all other proceedings, which are entered on the minutes or
preserved among the records of such court.
Art. 94. Judicial records of courts, within this state, are proved by
a production of the original record, or by a copy attested to be a true
copy by the clerk of such court, under the seal of the same, to which
must be annexed a certificate signed by the presiding judge of such
court, declaring that the person who has attested the same is clerk of
such court; but any error or omission in such copy may be rectified by
a collation with the original record; but, unless such error be shown,
the copy is a conclusive evidence. All records from other states, must
be authenticated in the manner directed by the laws of the United
States, in order to be received as proof in this state. Legislative acts
from other states, may be proved by the production of such printed
statute books as are proved to be received in the courts of such state.
Art. 95. Records of judgments on proceedings in foreign countries,
other than the states of the Union, are proved by the certificate of
officers, whose duty it is, by the laws of the country in which such court
is situated, to give such certificates, together with such other attestation
as is required by the laws of such country, to make such copy evidence
in other courts of the same country; which fact, to wit, that the attesta-
tion is in such form, must be certified by the minister for the proper
department of such government, and his signature and office must be
certified by the minister of the United States, if there be one in such
country; or, if there be none, by some consul of the United States for
that district of such country in which the decree was given, under his
hand and consular seal; and in countries where there is neither Ameri-
can minister nor consul, the substance of such certificate must be proved
by two witnesses, examined on commission or in open court.
Art. 96. Whenever a foreign judgment is made the foundation of a
suit or of a defence, and the party wishes to produce the copy, whether
authenticated in the manner set forth in the last preceding article or
only by the certificate of the clerk or judge, he must, at the time he
files his petition or answer, deposit in the court the said copy, and give
notice to the opposite party that he intends to produce such copy in
evidence; and if the opposite party shall, within ten days, give notice,
in writing, that he will oppose the introduction of such copy, then the
party offering the same must prove such record by an examination of
the proper officer on a commission; but, in such case, all reasonable
expenditures, made in the execution of such commission, whatever may
be the event of the suit, shall be borne by the party opposing the
introduction of the copy; provided such copy should, by the return to
the commissioner, be proved to have been complete and correct. But
CODE OF EVIDENCE.
659
if no such notice of opposition be given, the copy certified as aforesaid
shall be evidence of such judgment.
Art. 97. If such foreign judgment be not the foundation of the suit,
or of the defence, but may be necessary to be produced on some col-
lateral point arising in the cause, then the copy, authenticated as is
beforementioned, must be deposited at least fifteen days before the day
appointed for the trial of the cause; and notice must be given as is set
forth in the last preceding article, and the same proceedings must be
had by the parties as is provided for in the said article.
Art. 98. Nothing in the preceding articles shall prevent the admis-
sion of the copy of any foreign record, certified by the recording officer
of the court in which it was given and by the judge, as itself good
evidence when proved to be a true copy by the oath of a competent
witness, taken according to law, who has collated it with the original.
Art. 99. As evidence, a judgment rendered in either of the United
States, or in a foreign country, has the same effect, and is subject to the
same rules, as are established in the section on resjudicata for judg-
ments rendered in this state; but no judgment rendered in any court
whatever, in a suit in rem, whether by attachment or otherwise, shall
have any other of the effects of the resjudicata, except so far as respects.
the thing, the seizure whereof was the first process in the cause; unless
the party appeared and defended such suit, either in person or by
attorney.
Art. 100. If the only object be to prove a condemnation in a foreign
court of admiralty, it is not necessary to produce copies of any other
part of the proceedings than the libel and the final decree of condemna-
tion; and none of the evidence, taken in such court, shall be evidence
even between the same parties to prove any other point than the one
in contestation in the original cause.
SECTION IV.
Of records of the executive branches of government.
Art. 101. The following are the acts of the different departments
of executive government, which have the force of authentic acts.
1st. Commissions, or special authority to perform any civil duty,
given by the governor, pursuant to law, or any proclamation issued
by him. They must be under the seal of the state, and must be signed
by the governor, and attested by the secretary of state.
2d. Certificates of election directed by law to be given to persons
chosen to fill any place in office, signed by the persons who are au-
thorized to determine the result of such election.
3d. Certificates of the administration of oaths of office, and other
oaths necessary to be taken previous to the performance of the duties
of any place or office, signed by the persons authorized to administer
such oaths.
4th. Entries in the proper books of the registry and cancelling of
mortgages. Donations and other acts directed by law to be registered,
and such certificate as by law the officer appointed to make such regis-
try, is entitled to give.
5th. Entries in the proper book of the registries which may be
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made of births, baptisms, marriages, and deaths, by any officer who is
or may be appointed by law to enregister the same.
The commissions, proclamations, special delegations of authority,
certificates of election, and certificates of administration of oaths, are
themselves the original authentic acts; and those given by the proper
officers in this state, and in the form prescribed by law, need no addi-
tional proof, it being the duty of all judges in this state, ex officio,
to know the seals and signatures of the officers whose acts they pur-
port to be. Where the original of these acts cannot be produced, a
copy of the record of the commission or certificate of election, under
the seal of the state, certified by the secretary of state, is authentic
evidence. With respect to the certificate of the administration of
oaths of office, if the original cannot be produced, the fact may be
proved by other testimony, which may be or may not be authentic
according to its nature.
Art. 102. Entries in the proper books of the register of mortgages,
or other officers appointed to enregister any description of acts of bap-
tisms, marriages, births, or deaths, are proved by the official certificates
of such officer, with the addition of his seal of office where he is au-
thorized to keep such seal; and such copy is an authentic act, as are
also all such official certificates as he is by law authorized to give.
Art. 103. The registry of a mortgage, or of any other act which is
directed to be registered for the purpose of giving notice to those who
may be interested, or the authenticated copy of such registry, is not
evidence of the act itself: it is evidence only, that the law which
directs the registry has been complied with. Therefore, the registry,
or an authenticated copy of it, does not dispense with the introduction
of the act itself, or other legal evidence of its having been made.
SECTION V.
Of notarial acts.
Art. 104. Written instruments, made in the presence and attested
by a public officer duly appointed and commissioned for that purpose,
purporting to testify what is said, done, or contracted by the parties
to such act, are authentic acts, as are the copies of such acts attested by
such officer in the form prescribed by law. These acts are called
"notarial acts;" but they have the same effect when passed before
any other officer authorized by law, although not a notary; and
whenever the term notary is used in this chapter, it includes all such
officers as are empowered by law to authenticate private contracts.
Art. 105. All acts passed before a notary shall be written in his
registry, and signed by the contracting party, by the notary, and two
witnesses at least. This written instrument is called the original
notarial act; it remains as a record in the hands and on the books of
record of the notary. A copy of this notarial act, certified to be a
true copy by the notary or his successor in office, and under his offi-
cial seal, is full proof of such act in any court within the jurisdiction
of which such officer exercises his functions ; but in any other court
the signature of the notary must be certified to be true, either by the
judge of the court of highest original civil jurisdiction within which
the notary resides, or by the governor under the seal of the state.
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661
Art. 106. In order to give to any notarial instrument the form of
an authentic act, it must have the following requisites, the want of
either of which destroys its authenticity:
1st. It must contain in the body of the act the name and office of
the notary, or other officer, before whom it is passed, and the place for
which he is appointed.
2d. The place at which, and the day, month, and year when it was
made.
3d. The names and places of abode of the parties; or, if they have
no fixed residence, the last place of their permanent abode.
4th. It must appear that the act was passed within the district of
country for which the notary was appointed.
5th. It must be stated to be passed in the presence of at least two
witnesses, citizens of this state and inhabitants of the place for which
he is appointed.
6th. It must be signed by the party obligated if it be an UNILATERAL
contract, or by the declarant if it be a protest or declaration, and by
all the parties if it be a SYNALLAGMATIC contract; and if either of the
said parties cannot sign his name, either from want of knowledge,
accident, weakness, or disease, he must declare his incapacity and
from which of the said causes it proceeds, and such declaration must
be inserted in the act. It will not be sufficient for the notary to cer-
tify such incapacity, he must certify the declaration of the party.
7th. It must be signed by the notary, and by the witnesses who are
named as such in the act. No person is a competent witness for this
purpose who cannot write.
8th. Where either of the parties to an act cannot read, the notary
must certify that he has read the act to such party in the presence of
the witnesses, and that he consented thereto; and when the party in-
capable of writing can make a mark, he shall do so, and the notary,
or one of the witnesses, shall write opposite thereto the name of such
party, stating that it is his mark. When, from whatever cause, the
party cannot make the mark, it must be stated in the instrument.
9th. All signatures, as well of parties as of witnesses and of the
notary, must be at the end of the instrument; but for the approval
of any correction in the instrument, the signature may either be put
in the margin or at the end of the instrument, and a signature by
initials will be a sufficient approval of a correction which creates no
material change in the instrument; but every material correction
must be approved by a full signature.
10th. All interlineations, erasures, obliterations, or apparent changes,
in any part of the act which is necessary to give it validity, in the
names of the parties or witnesses, in the expression of any sums, or
the description of the thing which is the object of the act, in the date,
in the time of any payment, or in any other part of the act, which
alters the obligation, or increases or lessens the responsibility of either
party, must be enumerated and approved by the signatures of all the
parties.
11th. The act must appear to have been passed before one duly au-
thorized by law to give authority to such acts.
Art. 107. All the matters and forms set forth in the last preceding
article, are necessary to give to any act, passed before a notary, the
force of an authentic act; but there are some notarial acts, such as
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testaments, to the validity of which other formalities are specially
required, in addition to those above enumerated.
Art. 108. A notarial act is also invalid, as an authentic act, if, on
its face, it appears to have been executed by a married woman, with-
out the assent of her husband, or of the judge in cases where such
assent is required; or by a minor, or other person incapable of con-
tracting, without the assistance of a tutor or curator, if such curator or
tutor be no party to the act.
Art. 109. Signature, in this title, means the name of the party, writ
ten by himself; as evidence of his assent to an instrument as a party,
or to attest it as a witness: the family name must be written at length
-the baptismal or prenominal name may be abbreviated, or indicated
only by the initial letter, or altogether omitted, if such has been the
usual mode in which the signer has subscribed his name.
Art. 110. No party to an instrument shall avoid any obligation crea-
ted thereby, by showing that he has not signed it in his true name, or
in the manner in which he usually signed the same, provided the signa-
ture be made by him.
SECTION VI.
Of the effect of notarial acts.
Art. 111. Notarial acts, passed in the form required by law before
an officer duly authorized, are authentic acts, and have the following
effects:
1st. As to all persons, even those not parties to the act, it is conclu-
sive evidence that every thing which the notary certifies to have been
declared, acknowledged, or done in his presence, and in that of the
witnesses, was so declared, acknowledged, and done by the parties;
but against any but the parties and those who succeed to them or to
their rights, it has no other effect. Thus, a bona fide purchase made by
an authentic act from a person in possession, who has no title, although
it can give no right against the true owner, who was no party to the
sale, is yet conclusive evidence against him, for the purpose of establish-
ing a prescription and giving a title to the fruits during the time that
the purchaser possessed in good faith.
2d. As to all who were parties to such act, and those who succeeded
to them, or to their rights, it is conclusive proof of that, which is the
object of such act; and also of every thing relating immediately to the
object of the act—which is therein acknowledged by both parties-or
which is recited or enounced by one party and acknowledged by the
other, either expressly or by necessary implication. That recital or
enunciation by one party shall be said to be acknowledged by necessary
implication, which the other must, from the nature of the transaction,
have known, and which it would be his interest to deny if untrue, which
is suffered to remain uncontradicted by the act.
That recital or enunciation relates immediately to the object of the
act, which, if omitted, would make a material change in the obligations
incurred, or rights acquired by either of the parties.
Thus, for the illustration of the different parts of the last rule :-If a
sale is made by a notarial act for a certain price, which is promised to
be paid in a given time, (this purchase and sale being the object of the
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663
act,) it is conclusive proof of that transaction between the parties, so
that the purchaser needs no other proof of the sale, nor the seller of
the promise to pay the price, than the production of the act itself.
If the thing sold was subject to a yearly rent or charge, and the seller
declare that he has deposited the money in the hands of a third person
for the payment of the arrears up to the day of sale, this enunciation is
not the immediate object of the act; yet it relates immediately to it,
because the omission of it would have made a change in the rights and
obligations of the parties; but it is not conclusive against the purchaser,
unless he expressly acknowledge that it is true, because it is not a fact,
which he is supposed to know. If he expressly acknowledge it, it is
conclusive, and he can never afterwards call in question the truth of
such deposit. But if, in the last example, the rent-charge had, before
the sale, been due to the purchaser himself, and the seller had, in the
act, declared that all the arrears were paid; this declaration, if uncon-
tradicted by the buyer, would of itself, without any express acknow-
ledgment, by necessary implication, be conclusive evidence that the
declaration was true; because the fact, from the nature of the case, was
within the knowledge of the purchaser, and it was an enunciation which,
if not true, it was his interest to contradict.
If in the sale the vendor declare that he had acquired the property as
instituted heir of A. B., and the legal heir of A. B. should bring a suit
for the property against the purchaser, alleging that the will, under
which the vendor claimed, was void—this enunciation in the act would
not be conclusive evidence that it belonged to the estate of A. B., for
this enunciation did not immediately relate to the object of the act,
which was the sale; nor was it a matter, either within the knowledge
of the purchaser, or which he was interested in denying if it was untrue.
3d. Any enunciation made in a notarial act, is evidence against the
party making the enunciation in favour of the person who is no party
to the act, whether it relate to the object of the suit or not; but it is not
conclusive evidence; it amounts to an extrajudicial confession only, and,
as such, is ranked in the class of presumptions, which have more or less
weight, according to the circumstances under which the declaration
was made.
4th. A declaration or enunciation made by one party to an act, and
either expressly or by necessary implication acknowledged by another,
forms the same kind of proof against both, as set forth in the last pre-
ceding article.
5th. An act signed by the parties, intended for a notarial act, but not
valid as such for want of some formality required by law, is still good
as an act under private signature, if it have the requisites to give it
force as a private act; nor can the defect of its not being signed in as
many copies as there are parties in interest, be opposed to its validity
as a private act.
6th. The mention in an inventory, made by notarial act of any obli-
gation or other paper, forms no such proof against one not a party to
the inventory, as to dispense with the production of the original. The
entry in the inventory proves that a paper purporting to be such an
obligation was produced, but it is not conclusive evidence that it was
the act of the party. Where the original has, by other proof, been
shown to have existed, and has since been destroyed, and there are cir-
cumstances to prove its identity with the paper mentioned in the inven-
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*
tory, it may be admitted as presumptive proof of the contents of such
obligation.
7th. Although the enunciations made by the parties are, in the cases
above stated, sometimes conclusive and sometimes presumptive proof
between the parties, and are sometimes presumptive proof in favour of
third persons; they form no species of proof whatever against third
persons, and cannot injure their rights or obligate them.
To this rule there is one exception: an enunciation in an act, made
many years before it is offered, may at the discretion of the judge,
under the limitation hereafter expressed, be admitted as presumptive
evidence between those who are not parties to it in questions of age,
relationship, descent, affinity, filiation, absence, or death; but in no
other questions.
Thus, an ancient notarial act of a family assembly may be admitted
as presumptive proof between third persons, that the parties who com-
posed it stood in the various degrees of relationship which they severally
enounced. So, too, the enunciation of the deceased, in an authentic
and ancient certificate of burial, of the age of the child; in the like
certificate of baptism, the time of the death of a person in the act of
partition between his heirs, may be permitted as presumptive proof of
the enunciations therein contained.
But the discretion of the judge, to admit the testimony mentioned
in the exception to the rule, is limited to cases in which, from the date
of the act and from other circumstances, he is convinced that the parties
making the enunciation had no motive to declare a falsehood.
8th. Notarial acts take effect immediately after their signature.
Therefore, no alteration of an act, once perfected, is lawful even if done
with the consent of the parties; any modification they desire must be
made by a separate act; but such an act cannot affect any rights acquir-
ed by third persons by the act itself, or derived from one of the parties
after such act.
SECTION VII.
For what causes and in what manner a notarial act may be declared not authentic.
Art. 112. No notarial act, which contains on the face of it any
omission of any of these things which have been herein before enu-
merated as necessary to give it validity, shall be considered as an
authentic act; and the evidence of this shall be the inspection of the
authenticated copy, or of the original in cases where it is required to
be produced, or of other evidences taken according to the directions of
the following article.
Art. 113. When, on the presentation of the copy of a notarial act
duly certified, if the party against whom it is produced will declare, on
oath, or otherwise make appear to the court that there are defects in
the original of the said act, which do not appear on the copy, it shall
be the duty of the judge, if the facts are material, and also in all cases
where the hand-writing of the parties, witness, or notary, may be
legally brought in question, to cause the original to be brought into
court, if the same be within the jurisdiction of the court, but if other-
wise, then to appoint three proper persons to make a collated copy of
such original, and to report specially whether there are any, and if
CODE OF EVIDENCE.
665
any, what variation between the original and the copy which had been
produced, and also between the handwriting of the notary, parties, or
witnesses, in question-to compare the acknowledged handwriting of
the party whose hand is disputed with that which is in dispute, and to
report thereon; which persons shall be sworn before some magistrate
to perform the duty faithfully; and their report, or that of a majority
of them, shall be a legal presumption of the truth of what it contains.
After hearing the report of the persons commissioned as aforesaid, and
such other legal proofs as may be adduced by the parties, the judge
shall determine on the validity of the original act, in cases where it is
not within the jurisdiction of the court, in the same manner as he
would by inspection if the original had been produced.
Art. 114. There are cases in which a notarial act, although it may
contain apparently all the requisites to make it an authentic act, ought
not be admitted as such. These are:
1st. Where the signature of the notary, parties, or witnesses, or
either of them, are forged.
2d. Where the act has been altered, or a material part, since the ex-
ecution.
3d. Where either the notary, or either of the witnesses, were not
present when the act was signed by the parties or by either of them.
4th. Where the act was falsely read in a material part to a party,
who could not read; or falsely translated in a material part to a party
who could not understand the language in which it was written.
5th. Where it was executed out of the limits for which the notary
was appointed.
6th. Where the act is signed by one personating the party whom it
purports to bind, whether the one so personating him bears the same
name or not.
7th. Where the act purports to create any obligation upon, or to dis-
pose of, or affect the property of any person incapable by law of con-
tracting without the aid of a curator or tutor, and no such tutor or
curator was party to the act.
8th. Where the act was made in fraud of creditors.
9th. Where it was made without consideration, or for an inadequate
consideration, in order to avoid any law regulating successions.
10th. Where it is made under any other circumstances, which, by
the laws in force at the time of making the act, shall be declared to
render it void.
11th. Where any of the requisites necessary to give validity to the
act, have been falsely certified by the notary.
12th. Where the act wants any of the parts or clauses which are
necessary by law to give effect to such contract as it purports to be.
But this shall not prevent an act, invalid as to one intent, from being
operative in another, in cases where it is otherwise allowed by law.
13th. Where either of the parties were in a state of mind, either
from bodily weakness, derangement of intellect by intoxication, or
other cause, which rendered him incapable of understanding the nature
and consequence of the act, and such incapacity must have been appar-
ent to the notary and witnesses.
14th. Where the witnesses have not the qualifications required by
law.
15th. Where the consideration, declared to have been paid by the act,
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has not been paid; and this whether there is a renunciation of the ex-
ception of non numerata pecunia, or not.
16th. Where the act contains any disposition of property, or any
pecuniary obligation in favour of the notary, or any of his relations,
by affinity or consanguinity in the ascending or descending line, or col-
laterally to the relationship by consanguinity or affinity, of uncle or
nephew, inclusively; and this extends to the case where the disposi-
tion is made in the name of a person interposed for the benefit of the
notary or any such relation.
17th. Where the act purports to dispose of property which cannot,
by law, be conveyed-such as the dotal property of a married woman.
Art. 115. For any one of the causes mentioned in the last preceding
article, or for any of the defects apparent on the face of the act, which
are in this title declared to destroy its authenticity, a suit may be brought
by any one interested in having the said act declared invalid. In
which suit the objections made to the same shall be particularly set
forth; and all persons, interested in supporting the validity of the act,
must be made parties.
Art. 116. Whenever a notarial or other authentic act is the founda-
tion of any suit, or of the defence to any suit-that is to say, when-
ever, to support the claim for which the suit is brought, or the defence
which is made to the suit, it is necessary to produce such authentic act.
In all such cases, a copy of the act, intended to be relied on, shall be
filed with the petition, answers, or other pleading in which a reference
is made in the same; and if the party against whom it is produced,
intends to object to the same, he must do so specially and in writing,
specifying the particular cause of nullity on which he intends to rely;
otherwise no such objection, other than those apparent on the face of
the act, can be heard on the trial.
Art. 117. Wherever it may be necessary to introduce an authentic
act in evidence, on some collateral matter, not being the foundation of
the suit; or, if introduced by the defendant, of the defence, the par-
ty, if he can reasonably be supposed according to the circumstances of
the case to have foreseen the necessity of producing such act, shall file
a copy thereof ten days at least before the trial, and shall give notice
to the opposite party, who may then make his objections in the manner
directed by the last article.
Art. 118. If the party who ought, according to the preceding arti-
cles, to file the copy of a notarial act on which they mean to rely, do
not file it, the court may force its production, on the application of the
opposite party; or, at his option, he may make his objections verbally
at the trial; and if they are supported either by inspection or evidence,
the act must be rejected as evidence, and the party whose duty it was
to have filed the act, cannot in such case object to the want of notice
of the objections.
Art. 119. If it appears that the party could not reasonably have fore-
seen the necessity of producing such authentic act, and an objection be
taken to its authenticity for any cause not apparent on the face of the
act, the court, if they think the act material evidence, and if the ob-
jection be supported by affidavit either of the party or other person,
may, according to circumstances, give the necessary time to make and
answer the objections.
Art. 120. In all cases of objections to the validity of any act, which
appears on the face of it to have all the formalities required by law to
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give it authenticity, the burthen of proving the defects lies on the
party objecting to the validity of the act.
Art. 121. On the question of the validity of an authentic act, the
persons whose names are subscribed as witnesses, when not otherwise
incompetent, are competent witnesses.
The notary is also a good witness in all cases where no objection has
been made to the act in any point that implies a want of integrity, mis-
conduct, or inattention on his part; or where, if made, they are entirely
unsupported.
Art. 122. Authentic acts, not notarial, may be declared invalid for
either of the following causes:
1st. Forgery of the signatures, or either of them, or of the body of
the act.
2d. Want of legal authority in the party making such act.
3d. Making the act out of the limits for which the officer was ap-
pointed.
4th. If the authentic act be a commission, or other authority given.
under a law, the want of the qualifications required by law in the person.
commissioned or designated to perform the duty, including the objec-
tion to the want of security, and the taking of the oaths of office where
they are required.
5th. Fraud in obtaining the act by a false personification, or such
other false pretence as would make the party practising it liable to
punishment if they had been used to procure the delivery of goods or
money, under such penal laws as may be in force at the time of using
such false pretences.
6th. Bribery, either to the officer making the act, or any other per-
son, to do any thing necessary to procure the act to be made.
Art. 123. Suits for invalidating all authentic acts (not notarial) and
oppositions to their introduction in evidence, shall be governed by the
same rules as are laid down respecting notarial acts.
Art. 124. Forgery and bribery, mentioned as causes for invalidating
a notarial or other authentic act, shall be construed according to the
definitions of those offences given in such penal law as shall be in force
at the time such acts were made.
Art. 125. When a notarial act, or other authentic act, shall, by final
sentence of a court, be declared void for any cause, the court pronouncing
such sentence shall direct that it shall be noted in the margin of the
original of such notarial act, and of the record of such other authentic
act, if any such record shall have been kept, and on the certified copy
which was produced in court.
CHAPTER II.
Of unauthenticated scriptory evidence.
SECTION I.
Of the different kinds of unauthenticated scriptory evidence.
Art. 126. Unauthenticated scriptory evidence is of two kinds :
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1. That which is attested by the signature of the party whose act it
purports to be, called an act under private signature.
2. All other written evidence not so attested.
SECTION II.
Of evidence under private signature.
Art. 127. All written instruments, signed by the party whose act
they purport to be, which are not authentic acts, are called acts under
private signature.
Art. 128. Independent of positive law, no written instrument is, in
its nature, evidence of the truth which it contains. It shows that certain
covenants are written, and that certain names are subscribed to them;
but in itself it contains no proof, not even of the presumptive kind, that
those names were subscribed by the parties, or that the covenants were
made by them. In authentic acts this proof is supplied by the credit
which the law declares shall be given to the attestation of a sworn
officer. To acts under private signature, no such credit is given; the
production of them does not raise even simple presumptions of their
validity.
Art. 129. But although the law creates no presumption from the pro-
duction of such an act, yet to avoid unnecessary delays and expenses,
it permits the party against whom it is produced to be interrogated
whether the signatures are true. From this permission result the dif
ferent effects produced by the confession, the denial, or the ignorance
of the fact, stated in the answer of the defendant, or of his refusal to
acknowledge or deny the writing.
Art. 130. In every case where any party to a suit finds it necessary
to produce a writing under private signature, either to support his action
or maintain his defence, and wishes to have the answer of the opposite
party, as to the truth of the signature, he must annex the original
instrument to his petition or answer, and must pray that the opposite
party may declare whether the signature be true or false.
Art. 131. If the signature which a party is thus called on to confess
or deny, purports to be his own, the answer must be explicit, either
that he confesses it to be his, or that it is forged. An answer which
does not directly deny the signature, shall be deemed to be a confession.
Art. 132. If the signature purports to be, not that of the party him-
self, but of some other person, for whose obligation the opposite party
endeavours to make him liable, either personally or by virtue of some
office, duty, or trust, then the party interrogated is not obliged to
answer explicitly, as in the former case. If he have seen the party
write whose signature is in question, or is, from other circumstances,
acquainted with his handwriting, he must say so, and declare whether
he believes the signature to be true or false. It is only when he de-
clares himself utterly ignorant of the handwriting that he is dispensed
with declaring his belief.
Art. 133. The answers to these interrogatories need not to be on
oath, unless it is required by the opposite party; and when it is, the
effect is regulated by special provisions for that purpose.
Art. 134. The recognition or denial of a signature must be made by
the party himself, who is interrogated. A wilfully false answer, not
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669
only incurs the civil effects herein provided, but is considered as an
offence, and is punishable by the Penal Code.
Art. 135. The following are the effects produced by the answers, or
by the refusal to answer, to the interrogatory demanding the recognition
of a signature.
1st. If the party avow the signature, whether it be his own or that
of another for whose obligation he is responsible, it makes the act, as
to him and his representatives, an authentic act, and judgment may be
immediately rendered thereon, without any other proof or trial-if such
avowal be not accompanied by some legal defence, in the manner herein-
after provided; and it has, with respect to third persons, the same effect
that an authentic act in any other form has by law.
2d. If it purport to be the act of one for whose obligation the res-
pondent is liable, and he say that he is acquainted with the signature
and believes it to be true, it creates a legal presumption in favour of
the act.
8d. If the signature be denied, or if in cases where he is permitted.
to say so, the respondent answers, that he is ignorant whether the signa-
ture be true or false; then no presumption is to be raised on either
side. But the burthen of proving the signature true lies on him who
asserts it.
4th. If the party interrogated do not answer in the time prescribed
by the rules of court, the default is equivalent to a confession, and gives
authenticity to the act.
5th. If the party avowing the signature have a legal defence to make
against the operation of the instrument, supposing the signature to be
true, he may set forth the same in his answer, and then the obligation
of the act shall not be carried into effect until such obligations be
decided on. A legal defence, in the meaning of this article, is any such
as might be made on an ordinary trial, after the signature to the instru-
ment has been proved.
Art. 136. In all cases, whether under this section or not, when it
becomes necessary to prove handwriting, it shall be done in the man-
ner following:
§ 1st. If there be one or more subscribing witnesses, one of them
at least must be examined, if he be within the state, and his testimony
that he saw the party sign, is direct evidence, as is also the testimony
of a witness to the same fact, although he was not a subscribing
witness.
§ 2d. If the names of subscribing witnesses appear to the act, and
they are dead or not within the state, the handwriting of one at least
of the said witnesses, and of the party to the act, must be proved in
one or all of the modes following, that is to say-by a witness who has
seen the party write, or who has acquired a knowledge of his hand-
writing by correspondence, (by which is meant, writing letters and
receiving answers, under such circumstances as give no suspicions of
deception.)
Handwriting may also be proved by a comparison with some au-
thentic act, or other instrument acknowledged by the party, or posi-
tively proved by witnesses in the same cause to be his. This mode
of proof may be resorted to at the request of either party, and the
comparison is made by the judge on his own inspection; but he may,
at the like request, be assisted by persons, skilled in the knowledge of
handwritings, named by the court, and sworn to compare the papers
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and truly to give their opinion to the judge. But no writing can
serve as an instrument of comparison which has been judicially de-
nied by the party, although it may have been proved to be his.
§ 3d. If there are no subscribing witnesses to the act, and none who
can give direct evidence of the signature, then the handwriting may
be proved in either or all of the modes set forth in the last preceding
paragraph.
§ 4th. An act, under private signature, may also be proved by an
authentic act, if it be therein either recited or referred to in such a man-
ner as that its identity is clearly established. Thus, if in a notarial act
of inventory, a promissory note, given to the deceased, by a person who
signed the inventory, as executor or tutor, is particularly set forth,
and the note itself is referred to by a mark at the time of making the
notarial act; this sufficiently identifies the note, and renders no other
proof necessary. But if the act, under private signature, be merely
recited in an authentic act to which the maker of the note is party,
but the note be not produced and marked at the time of making the
authentic act, then other proof must be resorted to, to identify the
act under private signature which is in dispute, with the one recited
in the authentic act.
§ 5th. None of the above modes of proving an act under private
signature exclude the admission of the testimony of witnesses, who,
although they were neither present at the making of the act, nor are
acquainted with the handwriting, yet testify to facts to prove or dis-
prove the act, which could not reasonably be supposed to have hap-
pened if the signature were in the one case, and in the other were not
that of the party.
§ 6th. The proof by comparison of hands alone, unsupported by
other circumstances, is not a sufficient evidence of the validity of an
act under private signature, where the signature has been denied.
Art. 137. No suit can be brought for the purpose of making the
party to an act, under private signature, acknowledge or deny it, so
as to give it the effect of an authentic act, before the time limited in
the obligation for it to become due has elapsed, unless in cases where
by law it is made exigible before, except as is provided in the follow-
ing section.
SECTION III.
Of copies.
Art. 138. It is a general rule of evidence, that copies are not evi-
dence when the original can be resorted to. Copies of certain authen-
tic acts are modified exceptions to this rule. There is no exception
as to acts under private signature. There are, however, different
kinds of copies of such acts entitled to different degrees of credit, in
cases where the original cannot be produced. There are formal and
informal notarial copies, and unattested copies.
Art. 139. If the holder of an act, under private signature, thinks
the original is exposed to risk of loss, or fears that the evidence may
not be procured when wanted, he may, at any time at his own ex-
pense, present a petition to any court of competent jurisdiction,
and pray that the party who has signed the act may be summoned to
CODE OF EVIDENCE.
671
attend at the office of some notary, at a given time, in order to witness
the registry of such act, a copy whereof must be annexed; and the
party shall be summoned to attend accordingly.
Art. 140. If the party summoned shall file his answer to such peti-
tion, and deny the signature to the act, then that fact shall be tried as
in ordinary cases, and if found in favour of the petitioner, judgment
shall be rendered for him with costs, directing that the instrument
shall be registered.
Art. 141. If the party summoned does not deny the signature, but
(in cases where such answer is permitted) shall say, that he is ignorant
whether it be true or false, then evidence must be produced as in
common cases; and if it be found that the act is valid, it shall be
ordered to be registered.
Art. 142. If the party make no answer, and shall attend at the
time and place directed for the registry, whether he then acknowledge
the act or not, the notary, on production of a certified copy of the
petition and the judge's order, of the return of the proper officer
certifying that the party was duly summoned, or in cases where
after proof of the act in court, it shall be ordered to be registered, on
production of that judgment, shall register the act in his ordinary
register, and, shall annex thereto the certified copies of the previous
judicial proceedings.
Art. 143. If the party, after being summoned, do neither answer
nor attend, the notary shall, in like manner, proceed to copy the act
and annex the proceedings. Authenticated copies of records, thus
made, are called copies in form, and they have the same force and
effect as the originals, if the said originals should be lost or destroyed;
but, if not proved to be so lost or destroyed, they must be produced
in any suit brought thereon. The said copy and proceedings shall
be authentic evidence of the signature; but this shall not entitle the
plaintiff to prompt execution thereon; it only dispenses him with the
proof of the signature and with the production of the original, in case
it be lost or destroyed.
Art. 144. Proof of the destruction of an original act has a different
effect from that which is produced by showing that it is lost. In the
first case, the court may, on production of the formal copy or other
legal proof, give immediate effect to the obligation of the act. In the
last, they must direct that security shall be given to repay the money,
if the original should be produced in the hands of a bona fide holder,
within such time as the court, in their discretion, shall direct, or
order that the judgment shall not be executed until public notice shall
have been given for such a time and at such places as the court shall
direct, describing the instrument, setting forth the judgment and call-
ing on all persons to allege any reasons why it should not be carried
into effect. The provisions of this article apply to all cases where
judgment is given, or evidence of the contents of an instrument lost or
destroyed, as well as in cases coming under this section.
Art. 145. Acts may also be recorded without any judicial proceed-
ing, if done in the presence of the party obligated, testified by their
signature, and attested in the common form by the notary. Authen-
ticated copies of such records are also copies in form, and have the
force and effect with the copies mentioned in the preceding article.
Art. 146. Acts under private signature may also be transcribed on
the registry of a notary, without any judicial order, and out of the pre-
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sence of the parties.
called informal copies.
of its loss, as the formal
effects:
This registry, and notarial copies thereof, are
They do not fully replace the original, in case
copies do. They have, however, the following
1. They serve, as the foundation of a prescriptive right, from the
time of the registry only.
2. They verify the existence of the act, back at least to the period of
its registry, where the time of the execution is in question.
3. Where the party has enjoyed or exercised the right given, or
possessed the property purported to be conveyed, by such act, for ten
years from the time of registry, without interruption, it has the force
of an authentic act.
4. Connected with other proof of the execution of the original act
and its loss, and of the identity of the paper which was registered with
such original, they may form, according to circumstances, presumptive
evidence of the contents of such original.
Art. 147. An informal copy, without the intervention of a justice
or of a public officer, is called an unattested copy, and it may, when
the loss of the original is proved, be admitted as presumptive evidencé,
to show what were its contents, in cases where it can be established,
by legal proof, that the copy is correct, and that the original, from
which it was taken, was executed by the party against whom it is pro-
duced.
Art. 148. In case it is proved that the original was purposely de-
stroyed by the party offering the copy, or by him under whom he
claims; no copy, not even a formal one, shall be admitted in evidence.
Art. 149. When the original is proved to be in the possession of the
opposite party, an informal copy is presumptive evidence of the con-
tents, if the original is not produced after due notice. In such case,
even parol proof may be resorted to for that purpose in the manner
hereinafter provided.
Art. 150. Original acts, under private signature, may also be depo-
sited in the office of a notary, who must enter in his register an act of
deposit.
Art. 151. The act of deposit must declare at whose request it is made,
and designate the parties to the act who were present at such deposit;
it must be signed by those parties, by the notary, and two witnesses, in
the form of other notarial acts. The notary must annex thereto the act
deposited, having first made his paraph at the foot of every page of
writing contained in such act, and carefully noted all interlineations,
erasures, or obliterations, appearing thereon.
Art. 152. Acts thus deposited, and copies thereof duly attested, have
the force of authentic acts against the parties who have signed such act of
deposit, from the date of the act deposited. Against third persons they
have the same effect which authentic acts are declared to have, only
from the date of the deposit.
Art. 153. Acts deposited by one party alone have no effect as
authentic acts, except against him; but they have all the other effects
which, in a preceding article, are ascribed to informal copies.
Art. 154. The ex parte depositions of witnesses to the execution of
an act, under private signature, give it no additional validity, nor are
they a sufficient warrant for a notary to make a copy in form.
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673
SECTION IV.
Of the form and effect of acts under private signature.
Art. 155. GENERAL PROVISION.—All the rules contained in the suc-
ceeding section apply exclusively to acts under private signature, unless
the contrary be expressed.
SECTION V.
Of the requisites to an act under private signature.
Art. 156. An act under private signature may be made the evidence
of all kinds of obligations or declarations, excepting those which by
law are directed to be made by authentic act only; it must be signed
with the names of those whom it purports to obligate, or by the declar-
ant if it be a mere declaratory act.
Art. 157. The signature must be made at the end of the act, in the
proper handwriting of the party, if he can write; it must consist of the
name commonly subscribed by such party to his other writings; but no
act shall be invalidated because the party has falsely pretended that he
could not write, or has made his signature differently from his usual
manner.
Art. 158. If the party cannot write, his signature shall consist of a
mark made by him at the end of the act, in the presence of two wit-
nesses, and of his name written by one of them, with a declaration that
it is the mark of the party. This signature must be attested by that of
the two witnesses.
Art. 159. If the party can read, but from whatever cause, is unable
to write, he must, before affixing his mark, declare in the presence of
the witnesses that he has read the instrument, or that it has been read
to him. If he cannot read, the instrument must be read to him intelli-
gibly by one of the witnesses in the presence of the other.
Art. 160. No instrument, purporting to be the act of a person who
has not himself signed the same with his name, shall have any validity
against such person, unless the requisites prescribed by the last two
preceding articles have been complied with, or the party shall judicially
avow the validity of the act, after having the same read to him by an
officer of the court.
Art. 161. If an act be defective, for the want of any of the formali-
ties above described, its execution is no bar to a suit founded on the
obligation of which it was intended as the evidence, if such obligation
can be sustained by other proof.
Art. 162. It is not necessary to the validity of such an act, that
any part but the signature should be in the handwriting of the party
obligated.
Art. 163. In an instrument containing an obligation respecting mo-.
ney, or any other article of which the sum, quantity, or number, is ex-
pressed in words in the body of the instrument, and repeated elsewhere
on the paper in figures, if there be any difference between such a repe-
tition and the body of the instrument, the latter shall be esteemed the
"
4 K
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CODE OF EVIDENCE.
true numeration, unless an error of calculation appears on the face of
the act. If the numeration, both in the body of the instrument and
out of it, be in figures, other evidence may be admitted to prove the
intent of the parties.
Art. 164. Acts containing no other than communicative, or other
synallagmatic contracts, must have the legal signatures of all the parties
who, by the terms of the act, are obligated to each other thereby; if
any of the signatures of such parties are wanting, the act is invalid as
to the others.
Art. 165. If the act purports to contain communicative, or other
synallagmatic contracts, between certain parties, and also a unilateral
contract, relative to the same thing, by which they are jointly bound to
another, it need not be signed by the party to whom the obligation is
made by the unilateral contract.
CHAPTER III.
Of scriptory evidence not attested by the signature of party.
SECTION I.
Of the different kinds of unattested scriptory evidence.
Art. 166. Evidence, coming under this division, is of two kinds :
1. Writings which, from their form and nature, show that they were
intended to receive the signature of a party, and are therefore imperfect
without it. Of this kind are unsigned contracts of any kind, declara-
tions of trust, testaments, and codicils.
2. Writings which, from their nature, do not appear to have been.
intended to be attested by any signature. Such are entries in account
books, family records of births and deaths, and memoranda of other
events.
SECTION II.
Of writings intended to be signed by the parties.
Art. 167. Writings of the first kind are never to be admitted as direct
proof of the contract, or disposition of which they would have been the
evidence, if they had been perfected. They may be admitted as pre-
sumptive evidence-
1st. Of the intent to make the contract, or disposition in case where
such intent is material to the issue.
2d. Of the truth of any other enunciation contained in the writings.
3d. Of the knowledge which the party making such writing had of
any fact therein stated.
But such writing cannot be admitted at all, unless it is in the hand-
writing of the party whose act it purports to be, or is proved to have
been made by his direction, or to have been approved by him after it
was made.
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675
SECTION III.
Of writings not intended to have been signed by the parties.
Art. 168. Writings of the second kind may be admitted (against the
party making them) as presumptions of the fact they purport to state,
when they are proved to be in his handwriting, or to have been made
by his direction, or to have been read and approved by him.
Art. 169. The party against whom either of the two kinds of unat-
tested writings is produced, may be admitted to give an explanation,
on oath, of the circumstances under which the same were made, and
the intent of making them—subject to cross-examination.
Art. 170. These kinds of written evidence can be admitted for the
party who made them, only when it appears that they were made at a
time and under circumstances which show that they were not intended
to create legal evidence for the party making them.
Art. 171. When any written evidence is produced, under the preced-
ing article, the opposite party may demand that the other be examined
on oath.
SECTION IV.
Of writings not made by the parties to the suit.
Art. 172. All the previous provisions of this chapter relate to writ-
ings made by one of the parties to the suit, or by some one under whom
he claims, or by the direction of one of them. Writings made by
others, in which are included those which are printed, and maps and
plans, can be introduced in the following cases:
1st. Historical works-to elucidate any historical fact that may
become material in a litigated cause.
2d. Books of art or science-when any thing, appertaining to the
branch of learning of which they treat, is in dispute.
3d. Maps or plans-to elucidate questions of locality.
When made by persons who had no interest in making erroneous
representations to the prejudice or advantage of either of the parties,
and who are either dead or so situated that their testimony cannot be
procured. Or,
When legally attested to be accurate by the persons who made them,
or by others who have verified the delineations they contain.
4th. Accounts stated or calculations made by persons who prove
them to be accurate.
5th. Nautical and other almanacs-whenever the calculations they
contain are material to the issue.
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TITLE IV.
OF SUBSTANTIVE EVIDENCE.
Art. 173. Substantive evidence being that which arises from the
existence or position of an object in relation to the fact in dispute, it
follows, that unless it comes within the scope of that evidence which
is offered to the senses of the judge in the situation and under the
circumstances which make it material to the cause, it requires other
evidence for its introduction. A bloody dagger is substantive evidence:
if the judge saw it in the hand of the assassin immediately after the
blow was struck, it would be the foundation of evidence coming within
his own knowledge; otherwise, it must be supported by testimony to
show when and where it was found, and the instrument itself forms
the substantive evidence.
:
Art. 174. The following are examples of substantive evidence the
mark on a tree, coinciding with that stated by testimonial or scriptory.
evidence in cases of disputed boundary, is substantive evidence of a
land-mark. The number of concentric circles in the wood, that has
grown over the mark, is substantive evidence of the number of years
that have elapsed since it was made.
The inscription on a monument or tombstone, is presumptive evi-
dence of the time of birth or death, and the other material facts it
commemorates.
TITLE V.
OF PRESUMPTIVE EVIDENCE.
Art. 175. Presumptions are of two kinds: such as are the result of
the reason only of the judge, exercised on the circumstances which are
proved, without any express direction of law to guide him in his con-
clusions, which are called simple presumptions; and legal presumptions,
which are such as the law expressly directs to be drawn from certain
circumstances.
Art. 176. The difference between a simple and a legal presumption.
is this, that the first is an inference drawn by the judge, from the cir-
cumstances by the unrestrained exercise of his reason; the last is a
deduction made by the law itself, which the judge is forced to adopt,
whatever may be his own conclusions from the facts:
That a man of good character will not tell a falsehood;
That other things being equal, a man will do that which is most
conducive to his interest and happiness ;
That a mother will not abandon her infant;
Are examples of simple presumptions, drawn from the structure of
the human mind.
That, if the obligation is delivered to the debtor, the debt has been
paid;
code of evidence.
677
That the rent due from former years has been paid, when a receipt.
is produced for the last year;
Are other instances of simple presumptions, drawn, not like the
former from nature, but from the common course of business and affairs.
All these, although natural conclusions, are simple presumptions, because
there is no positive law directing them to be drawn.
That the person who has been in the peaceable possession of real
property for more than a year, is the owner;
That, when no time is expressed for the duration of a lease of a pre-
dial estate, it shall be for a year;
Are examples of legal presumptions, which the law expressly orders
to be drawn.
Art. 177. The effect of a presumption, whether simple or legal, in
favour of any affirmative or negative proposition, is, that the proof of
such proposition is considered as established, until the contrary is shown
by direct proof, or rendered doubtful by other presumptions.
Art. 178. When the party, who alleges a fact, brings no evidence
of any kind to support it, the want of such evidence creates a presump-
tion in favour of the party who denies.
Art. 179. When the existence of one fact necessarily supposes the
existence of another, so that, if one be true the other cannot, in the
nature of things, be false, the induction drawn from the establishment
of the first fact is not a presumption, but conclusive evidence.
Art. 180. The division of presumptions heretofore known in our
law, under the name of presumptiones juris et de jure, is abolished.
Evidence, heretofore arranged under that head, will be found in its
proper division in this title.
Art. 181. A legal presumption (unless declared by law to be con-
clusive) has no greater force of itself than a simple presumption, and
may be counteracted by one if sufficiently strong.
Thus, the lease of a predial estate, when no time is expressed, creates
a legal presumption that it is to continue for a year; but if the lessor,
at the time of making the lease, with the knowledge and assent of the
lessee, makes another to a third person, to commence at the end of
three months from the time of making the first, the first presumption.
is counteracted by the second.
Art. 182. Presumptions can only be raised from facts, which appear
by legal testimony; therefore, a matter that cannot be given in evi-
dence, cannot be a legal foundation for any presumption.
Art. 183. Simple presumptions must be founded":
First, on the establishment of some fact by legal testimony.
Secondly, by such deduction from that fact as is warranted by a con-
sideration of the usual propensities or passions of human nature; by
the usual course of business; by the particular habits or passions of the
individual, whose act is in question; or by the course of nature.
TITLE VI.
OF DIRECT EVIDENCE.
Art. 184. Direct evidence being that which, if true, conclusively
establishes the proposition in question, it follows that this kind of evi-
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CODE OF EVIDENCE.
dence gives rise to one inquiry only, to wit-Whether the fact be true?
The mind once convinced of this, has no other operation to perform,
in order to arrive at the truth of the proposition asserted, which must
be true, if the evidence be true. In all cases, therefore, where any
doubt remains of the fact in question, after the mind of the judge is
fully satisfied that the evidence, offered in support of it, is true; such
evidence is not direct, but presumptive only.
Art. 185. Although the effect of direct evidence, when established to
be true, is conclusive of the fact in question; yet the truth of such evi-
dence (in cases where it is not declared by law to be conclusive) depends
on presumptions more or less strong. The declaration of a witness,
that he saw the act in controversy done, is direct evidence, and (if the
judge have no doubt that the witness tells the truth) is conclusive.
But whether the judge will give credit to the witness, must depend on
the presumptions in favour of, or against his veracity, arising from
character and other circumstances. Thus, too, the authority of written
testimony, even of records, (independent of positive law,) depends on
the presumption, that the witnesses who prove, or the public officer
who recorded them, would not attest a falsehood.
Art. 186. It results, from the preceding articles, that direct testimony
(when not declared by law to be conclusive) may be counteracted, not
only by other direct contrary evidence, but by presumptions.
TITLE VII.
OF CONCLUSIVE EVIDENCE.
CHAPTER I.
Definition and division of the different kinds of conclusive evidence.
Art. 187. Proof of any kind may produce conviction in the mind
of the judge of the truth or falsity of any proposition; but no evi-
dence is called conclusive in this code, but that which is declared to
be such by it or by anterior law.
Art. 188. When the law has declared that certain proof forms con-
clusive evidence of any fact, the judge, whatever may be his own
conclusion, can make no other than such as has been drawn by
the law. He can admit no presumptions or direct proof to weaken
the effect of evidence, so declared to be conclusive; but in the man-
ner prescribed by law, in particular specified cases, he may admit evi-
dence to disprove its existence.
Art. 189. Conclusive evidence is classed under several heads :
First-Such as arises from the uniform course of nature.
Second-That which is expressly declared to be such by law.
Third-That which is produced in the mind of the judge by the
clear and unequivocal exercise of his senses.
That, where maternity is proved, there must have been cohabitation,
is an example of the first class.
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Where there is no personal incapacity, cohabitation is conclusive
proof of the second class, that the issue of the wife is the issue of the
husband.
And an example of the third class may be given in the case where
the issue is, record or no record, and the judge decides it by inspection.
Art. 190. In order that the course of nature should be the found-
ation of conclusive proof, it must be the invariable course of nature;
its general course only gives rise to presumptions. Proof that an
absentee was born two hundred years ago, is conclusive proof that he
is dead, because no instance has been known of human life extended
to that period. If it be shown that he was born one hundred years
before, the law creates a presumption of his death, which may, how-
ever, be counteracted by proof, because, though it be the general
course of nature for men to die before that age, it is not invariable.
Art. 191. When the law, by the enactment of positive rules, de-
clares certain evidence to be conclusive, it is done to avoid litigation.
or fraud, and prevent the temptation to perjury.
Some of these rules are declaratory of the conclusions drawn from
the invariable course of nature, mentioned in the preceding articles;
others are positive provisions, established by legislative wisdom, for
the object above stated in this article.
The birth of a child more than three hundred days after the death of
the husband, is conclusive proof that such child is not his, and is an
example of the declaratory rule above mentioned, as the same is con-
tained in our law as it now stands.
The authority given to a judgment between the parties, to an au-
thentic act, and to a judicial confession, are examples of the positive
rule.
CHAPTER II.
Of resjudicata.
SECTION I.
What judgments are valid as resjudicata.
Art. 192. Resjudicata is whatever has been finally decided by a
court of competent jurisdiction-proceeding according to the forms of
law-by a valid sentence-on a matter alleged and either denied or
expressly or impliedly confessed by the other; and it is conclusive
evidence of that which it decides, between the same parties or those
that represent them, litigating for the same thing, under the same title,
and in the same quality.
Art. 193. Such judgment may be used, either as a plea (in which
case it bars any other suit brought for the same cause) or as evidence,
and is then conclusive of that which it decides, under the modifications
contained in the following articles.
Art. 194. The decision must be final, that is to say, it must be such
as the court, rendering it, could not alter, on the application of either
party, or reconsider it of its own accord; therefore, an interlocutory
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order that a party account; a judgment that needs confirmation;
the verdict of a jury, or even a final judgment, before it is signed,
and before the time has elapsed within which it may be set aside on
a motion for a new trial or rehearing, has not the force of resjudicata.
A judgment appealed from has not the force of resjudicata, and is not
even presumptive proof; but a final judgment, although the time for
appealing may not have elapsed, is conclusive proof until the appeal
be made.
Art. 195. By appeal, in this title, is meant any legal process what-
ever, by which the judgment of an inferior court may be reconsidered
and modified or annulled.
Art. 196. The judgment, to form conclusive proof, must have been
rendered by a competent tribunal. A sentence, having all the other
requisites, is no proof, if the person who rendered it had no power
to decide on the subject matter in dispute between the parties; but
this want of jurisdiction must appear by an examination of the pro-
ceedings in the court in which the judgment was rendered, and of the
law by which the court rendering it was empowered to act: and no
allegation of any matter not appearing from the said laws and proceed-
ings, shall be admitted to show a want of jurisdiction, although such
allegation would have deprived the court of its jurisdiction, had it
been pleaded and proved in the original cause.
Thus, a judgment given for more than one hundred dollars by a
justice of the peace, under our present laws, is no evidence that the
defendant owes that sum, because the court has no jurisdiction; or
that he owes any smaller sum, because the whole judgment is void.
But a judgment rendered in a court of the United States, in a suit
brought by a person styling himself an alien against a citizen of the
state, would be conclusive evidence, although in fact he was not an
alien; nor can any evidence of that fact be admitted in opposition to
the judgment.
Art. 197. Where the court, in which the judgment relied on as
evidence has been given, is one of limited jurisdiction, either as to
sum, person, place, or the nature of the suits of which it can take
cognizance, its decisions are no proof, unless the circumstances ne-
cessary to confer jurisdiction appear on the record of the suit.
Art. 198. The courts of this state will ex officio take notice of the
jurisdiction given to the different tribunals within the same; but
where a judgment given in another state, or in a foreign country, is
relied on, the production of the judgment, duly authenticated, is pre-
sumptive evidence that the court had a competent jurisdiction, unless
the contrary appear on the record; bnt such presumption may be
removed by showing the want of jurisdiction by such evidence as is
allowed by law.
Art. 199. Whenever a judgment is offered, either as presumptive
or conclusive evidence, all the proceedings in the suit, in which such
judgment was rendered, must be produced.
Art. 200. Every judgment to operate as evidence of the thing judged,
must have been rendered in the forms which are prescribed by law, in
order to give validity to the judgment, unless the matter which is
alleged as want of form has been either impliedly or expressly assented
to by the party who alleged it.
Thus, the want of a citation is a defect that would render the judg-
ment void; but if the party has expressly acknowledged service of the
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681
petition, or impliedly waived the necessity of a citation, by putting in
an answer, this shall not be made an objection.
Art. 201. The want of form, prescribed by law for the validity of a
judgment, must (in order to bar its operation as resjudicata) be such as
is apparent on the face of the record. No other evidence can be re-
sorted to, in order to prove any such defect.
Art. 202. A sentence to produce the effect of resjudicata, must not
only have been rendered, but must be in itself valid, according to the
forms of law.
Art. 203. Judgments may be erroneous and unjust without being
invalid, within the purview of the last article. Whether the error be
in the construction of law, or the deduction from fact, the judgment
is valid, unless appealed from; but an invalid judgment is one that
appears on the face of it to be void.
SECTION II.
What judgments are invalid to produce the effect of resjudicata.
Art. 204. Judgments, under the following circumstances, are not
valid under the preceding articles:
1st. When the judgment is uncertain, and is not rendered certain by
some part of the record. Thus, a judgment that the defendant pay the
damages which the plaintiff sustained, is uncertain; but if the judgment
had been to recover what the plaintiff demanded, it would be rendered
certain, by referring to the plaintiff's demand. If it were to recover
damages as A. should determine, it would not be void, but could not.
operate as resjudicata for another reason, because such judgment would
not be final.
2d. When the judgment pronounces something expressly contrary
to the law; by which is meant, when it declares that what is acknow-
ledged by all to be law, shall not be observed: as if on a plea of infancy,
to avoid a contract, it should declare, that because the defendant was
twenty years of age, he should be bound. But a decision on the con-
struction of law is still binding, although the judge may have been
wrong in his construction. Nor is the force of a judgment lessened,
although the evidence should not warrant the conclusion drawn by the
judge.
3d. When there is an evident error of calculation appearing in the
judgment itself: as if in a suit for the value of three hogsheads of sugar,
the sentence should be, that the defendant pay, at the rate of $70 per
hogshead, the sum of 250 dollars.
4th. Where the judgment is contrary to the judicial confession of
the party in the same suit: as if the decree should declare, that a de-
fendant should go quit of a debt demanded by the plaintiff, and which
the defendant had confessed in his answer to be duc.
5th. Where the decree is given against one not a party to the suit.
6th. Where the judgment has been rendered against one who appears
in the suit to be a minor, or other person who is not, by law, competent
to defend his own interests without the intervention of his curator or
tutor, or other person designated by law to watch over his interest.
This rule includes married women, who appear without being author-
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ized by their husbands, or by the court, in cases in which authorization
is required.
7th. Where the party can show, in the manner hereinafter prescribed,
that the judgment has been obtained by forgery or fraud, and the party
had no notice in time to avail himself of the objection in the court where
the judgment was rendered.
Art. 205. The judgment must also be in a matter alleged by the
parties in the suit in which it is given. Thus, if the demand be for one
acre of land, and the judgment is that the plaintiff recover three acres,
this judgment would be neither conclusive evidence of his title to the
two additional acres, nor a bar to the defendant if he should sue to
recover them.
Art. 206. It is not sufficient that the matter on which the judgment
is given be alleged by one party; it must also be denied or admitted by
the other party but a general denial of all facts alleged, is sufficient for
this purpose, without specially negativing the several facts alleged.
Art. 207. The denial or admission, referred to in the last two pre-
ceding articles, may be either express or implied. A denial of the
fact in question is implied when it is a necessary consequence from the
denial of another fact. Thus, a denial that the party was ever indebted,
is an implied denial of the charge of a sum alleged to be due for interest;
but an allegation that the principal sum has been paid, is no negative of
the interest being due.
Art. 208. A refusal or neglect to answer in the time prescribed by
the rules of procedure, creates an implied admission of the allegations
to which the answer is required. Therefore, a judgment by default,
rendered definitively, is resjudicata, although the fact, on which it is
pronounced, was neither expressly denied or admitted.
Art. 209. A judgment absolving a party from that which he has
judicially confessed to be due in the same suit (provided such confession
has not been set aside) is not resjudicata in favour of the person making
the confession.
Art. 210. Such judgment as is described in the foregoing articles is
conclusive; that is, it is a bar when pleaded, and conclusive proof when
offered in evidence, of that which it decides; but of nothing else con-
tained in such judgment: therefore, nothing alleged by way of induce-
ment, illustration, argument, or example, in giving the judgment, has
the force of a judgment.
Art. 211. The pleadings in each cause are the only evidence of what
was alleged, and denied, or confessed, and the decisory part of the
judgment of that which was decided.
SECTION III.
Against whom the resjudicata may be given in evidence.
Art. 212. The effect of resjudicata is confined to the parties in the
suit, or to those who succeed to their interest. There are, however,
exceptions to this rule, which will be particularly noticed.
Art. 213. Parties are those only who appear in the suit and allege
or answer; who have been cited in the manner prescribed by law,
although they do not appear or answer, or who have intervened in the
suit to contest or prosecute the same.
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683
Art. 214. No person can be concluded by a judgment, although a
party to it, unless for the amount of the interest, which, at the time of
rendering such judgment, he had or claimed in the matter in contro-
versy. No interest accruing after such judgment, by any party, is
affected by it. Thus, if the heir or executor sue one for effects belong-
ing to the succession, and it should appear that the defendant had no
property belonging to the estate, and judgment be thereupon rendered
in his favour, this judgment shall be no bar to a subsequent suit, against
the same defendant, who may afterwards have got possession of part of
the estate.
Art. 215. But every person cited to show what right he has in any
matter in controversy, is, as to the other parties in such suit, and as to
any claims he may then have, bound by the judgment rendered therein,
although he do not set forth his right.
Art. 216. Not only the parties, but those who succeed to the interests
in the subject in controversy, are bound by the judgment; but they must
succeed to them-that is, they must hold or claim under them. Thus,
the sentence against the ancestor, binds the heir-against the seller,
binds the purchaser; but a sentence against or in favour of the possessor,
does not bind him who recovers the property from such possessor, or
acquire it in any other manner, which does not suppose the property
to have been in him at the time of such judgment.
Art. 217. Every one is a party to a suit who appears as such, either
in person, by a mandatory duly constituted, or by an attorney at law
duly licensed to practice in the court in which the suit is pending and
employed by him; and it shall be presumptive evidence that such
attorney at law was employed by the party, if he had in his hands the
papers necessary for the prosecution or defence of the cause, or if the
party knew that such suit was prosecuted or defended in his name,
and did not disavow the attorney in such court.
Art. 218. To be bound by a judgment, it is not sufficient to have
been a party to the suit only, but to the judgment; therefore, a party
who, before the judgment, is allowed to discontinue-whose name is
struck out of the proceedings-who is otherwise dismissed before a
hearing on the merits-or who, on the hearing, is dismissed as having
improperly been made a party-is not bound by a judgment afterwards
rendered; but if the order of dismissal be appealed from and reversed,
and such party's name is afterwards reinstated in the pleadings, he shall
be bound by the judgment.
Art. 219. A judgment on an appeal against the party in the original
suit, who has neither cited, nor appeared, nor in any manner waived a
citation in such court of appeals, is not resjudicata against such party.
Art. 220. The exceptions to the rule, that none but parties to a
judgment are bound by it, are the following:
1st. Where a suit has been brought for the purpose of determining
a right of common or servitude claimed by several persons, either by
one or against one or more of the persons claiming such right, the judg-
ment shall be conclusive for or against all the other commoners or
persons claiming the same servitude or right of common, under the
same title; but not, if they claim under a different title.
2d. When a public or private corporation, or body politic, shall
claim a right of laying or receiving any toll, tax, duty, wharfage, ton-
nage, or any other contribution or imposition whatever, a judgment
rendered in a suit to try the legality of such claim, between the said
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corporation or body politic and any individual interested therein, shall
be conclusive as to the right of such public or private corporation or
body politic.
Provided, that in the two cases, above mentioned in this article, the
decision shall not be conclusive, except against those who are indi-
vidually made parties, unless two concurring judgments have been
pronounced on the same right; in which case the judgment shall be
resjudicata as to all; but if the servitude claimed be indivisible, a single
judgment is conclusive.
3d. A judgment against a principal debtor shall bind his surety,
although he be no party to it; and, in like manner, a judgment in
favour of the principal shall be conclusive evidence for the security.
4th. If one who has acquired by purchase, donation, exchange, or
any other contract, suffers the former proprietor to prosecute or defend
a suit affecting such property, the person so acquiring such property,
having notice of such suit, he shall be bound by the judgment, if it be
given against the former proprietor, although he, the purchaser, be no
party; but a judgment given in favour of the former owner, in such
suit, shall not prejudice the title of the true owner. The same rule
applies to the creditor, who suffers the owner of property, who has
pledged or mortgaged it to him, to litigate respecting it with his know-
ledge. In this case, the creditor shall be bound to the amount of his
interest by the judgment given against the owner; and, in like manner,
if the owner of the property pledged or mortgaged suffers the creditor
to litigate respecting it, he shall be bound by the sentence.
Provided, that the said judgments, mentioned in this article, be ren-
dered on a fair contestation of the right, and not collusively, or by
default or confession; and therefore, in any such case, the party against
whom any such judgment is opposed, either as an exception or evidence,
may show that it was entered by collusion, and defeat its effect.
Art. 221. There are no other causes than those expressed in the last
preceding article, in which one who is not a party to a judgment, or
who does not succeed to the rights of those who were parties to it, is
bound thereby.
Art. 222. Where, in a suit brought by one plaintiff, judgment has
been given against him, and he afterwards brings another suit for the
same cause of action jointly with another, the former judgment shall be
conclusive against the former plaintiff, if his interest be a divisible one,
and under the same title with that brought in question in the former
suit. If his interest be indivisible, or if the last claim is under a differ-
ent title, the former judgment is not conclusive.
Art. 223. To give a judgment the force of resjudicata, when pleaded
or offered in evidence in another cause, it must appear that the subject
matter in controversy, in both causes, is the same. If it be essentially
the same, although demanded in a different form, the judgment is con-
clusive. Thus, if a personal action is brought on a debt due by mortgage,
and it be decided that nothing is due, this judgment is a bar to a sub-
sequent hypothecary suit for the same debt. In like manner, if the
first suit be a hypothecary action, and the decision is that nothing is
due to the plaintiff, such judgment shall bar a personal suit for the
same thing.
·
Art. 224. There are, however, exceptions to, and modifications of,
the rule contained in the last article, as follows:
1st. Where the matter in dispute is an aggregate body, of which
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685
the parts are changeable by nature, without changing the character of
the whole. Thus, a judgment relative to a flock, is conclusive between
the parties, although the individual animals composing the flock may
not be the same at the time of both suits.
2d. Where the party, who has failed in a demand for the whole,
shall afterwards bring a suit for a part, the first judgment is a bar; and
this, whether the controversy be for a certain price of property, a sum
of money, or an incorporeal right. Thus, if a suit be brought for a
tract of land, and judgment be rendered for the defendant, the judg-
ment will be a bar to an action brought under the same title for any
part of the same land, either for an undivided part, or for a certain
designated portion. The same rule applies where a suit is brought for
two separate pieces of property and judgment be rendered for the de-
fendant, the plaintiff cannot afterwards sustain a suit for either of them
separately. The rules laid down under this second head also apply to
the defendant; if the judgment be rendered against him for the whole,
he can never sustain an action for any of the parts separately.
3d. Where a suit has been brought for a distinct part and under a
PARTICULAR TITLE, and a demand is afterwards made for the whole,
the judgment, in the first suit, is resjudicata only for that part which
was in controversy in the first suit. But if the first judgment were for
a demand for a part, under a UNIVERSAL TITLE, such judgment, if
against the plaintiff, is no bar to the suit for the whole.
4th. There is an exception to the second rule of this article, in the
case of a suit brought in the cases allowed by law for the materials
which have been employed in the construction of a house. This de-
mand is not barred by a judgment-given against the plaintiff in a suit
brought by him for the house.
Where what is demanded by the second suit, although not the same
with that which was the subject of litigation in the first, yet is incident
to, or grows out of it, or by law belongs to him, who is the owner of
that which was the object of the first suit. There the first judgment
is a bar to the second suit. For example:
It having failed in a demand of a female slave, the plaintiff should,
under the same title and by virtue of the law which gives the issue of
a female slave to the owner of the mother, claim a child born of such
slave.
Or, if in a demand for a principal sum it has been adjudged that it
was never due, the same plaintiff should sue for the interest of such
sum. In both these cases the first judgment would bar the second suit,
although the demand was not for the same thing. But if in the first
example, the child was claimed, not by virtue of the principle of law
which gives the issue of a slave to the owner of the mother, but by
some other title, even by virtue of a sale by which both the mother and
child were conveyed, the judgment in the first suit, by which the mo-
ther was demanded, is no bar to the second. And in the second exam-
ple, if the judgment in the first suit had been, not that the capital had
never been due, but only that it had been paid, then the first judgment
is no bar to the second suit, under the law relative to resjudicata; but
it is a bar under another principle, that to avoid circuity of actions the
right to interest shall always be determined in the same suit by which
the principal is demanded. Thus, too, a judgment settling the title to
land, is a bar to a subsequent suit for alluvial soil added to it since, or
to a claim for trees which have been cut, demanding them as the
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1
growth of the land, by virtue of the same title under which the land
was claimed.
5th. Whenever the thing demanded by a second suit is so included
in that which was decided by a former judgment, that the decree
rendered must confirm or annul that which was given in the first,
then, although the same thing be not nominally demanded, yet the
first judgment shall be considered as resjudicata between the parties.
For example-If, in one suit respecting a servitude of view, it has
been determined that the party has no right to raise his wall ten feet,
this judgment will bar a claim to raise his wall twenty feet; for, if
the second judgment should be against the right claimed in the second
suit, it affirms the judgment given in the first; if it allows the right,
it annuls the first decision.
6th. In determining whether the same thing be demanded by a
second action, courts must determine by the substance, not the form
of the demand. Thus, if judgment be rendered on a written obliga-
tion for the payment of money, this judgment shall be a bar to a sub-
sequent suit for money lent, founded on the same transaction, unless,
in this case, the obligation be declared void for some reason not affect-
ing the original cause of action.
7th. But if a plaintiff fails in a suit, because he has mistaken the
manner in which it ought to have been brought, such judgment is no
bar to a suit brought in the proper form for the same thing.
Art. 225. A judgment on a claim of ownership, or for possession
of property, is no bar to a suit for a usufruct or servitude, or use on
the same land. Nor is a judgment on a claim for such usufruct, servi-
tude, or use, any bar to a suit for the property or possession.
Art. 226. A judgment in a suit for possession is no bar to a suit for
the property; but a recovery in a suit, where both property and pos-
session are claimed, is a bar to a subsequent suit for possession.
Art. 227. A judgment in a suit for one species of servitude is not a
bar to a suit for different servitude, although that which was first de-
manded, may include the last. Thus, a suit for a right of footway
is not barred by a judgment that the party claiming it had no right to
a servitude for the passage of cattle.
Art. 228. Another requisite to the conclusiveness of a judgment
is, that the thing demanded must, in both suits, be not only the same,
but demanded under the same title.
Art. 229. The last requisite to give effect to a decision as resjudi-
cata is, that the parties should, in both suits, prosecute or defend in
the same quality; if in the first suit, the party, against whom the
judgment is opposed or defended, sued as executor, curator, tutor,
attorney in fact, or garnishee, and in the second appeared in his own
name, the judgment can neither be a bar, nor evidence for or against
him, although the same thing be the object of the suit, and it be
against the same party.
Art. 230. Yet, if a quality be assumed or given in either suit which
would make no alteration in the party's right, the judgment shall have
its effect as a bar or as evidence. As if a man bring a suit, on a pro-
mise made to him personally by another, or for personal injury done
to him, and in such suit call himself heir or executor of another,
or give other of those qualities to the defendant, judgment in such
suit would be conclusive in another, which might be brought for the
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687
same cause, unless the first judgment were given as an exception
taken to the quality assumed, and not on the merits.
CHAPTER III.
Of confession.
Art. 231. Confession in relation to the manner in which it is made
is, either judicial or extra judicial. In relation to its nature, it is
either full or partial only.
Art. 232. A judicial confession is that which is made by a party in
some writing forming part of the proceedings in a cause, or which is
made before a person authorized by law to receive the same, and re-
duced to writing by him, or under his authority, in the manner pre-
scribed by law. Extra judicial confessions are those which are made
in any other manner.
Art. 233. Full confession is that which acknowledges the fact
alleged, with all its material circumstances, so as to leave nothing to be
supplied by other evidence. Partial confession is that which acknow-
ledges some circumstance from which an inference may be drawn to
operate as presumptive evidence.
Art. 234. In civil cases, every proceeding being usually made with
due deliberation and a knowledge of facts, a judicial confession, whe-
ther full or partial, is conclusive evidence of what is so confessed, but
with the following provisions to guard against error.
1. Whenever a judicial confession has been made by the party him-
self, which on reflection he deems to be erroneous, he may on appli-
cation within a time which the judge shall deem reasonable, and on
showing cause to his satisfaction, obtain leave to amend such confess-
ory proceeding.
2. When the confession has been made by an attorney or agent,
such amendment shall be of course, if the party shall without unne-
cessary delay, after the proceeding comes to his knowledge, state the
error on oath, and apply to have the same amended.
3. The condition of such amendments shall always be, that the ad-
verse party shall be paid all costs and expenses he may have incurred
in consequence of the error, and have time allowed him, if he require
it, to supply other evidence of the facts at first confessed.
Art. 235. In criminal cases, no confession, whether full or partial,
is conclusive evidence to the jury on a trial. The answer of "guilty"
to the charge, if persevered in after the admonition and inquiry here-
inafter directed, is such evidence as justifies the court in pronouncing
sentence, without the intervention of a jury.
Art. 236. When the accused, on his arraignment, shall plead
"guilty," it shall be the duty of the court to admonish him of the con-
sequences of such answer, and to inquire, as well from him as from
others, and particularly if he be in custody from the officer having
charge of him, whether his acknowledgment has been produced by
any threat or promise; and also when there is any reason to suppose
insanity or imbecility of mind, to inquire into that fact.
Art. 237. In all other cases of a full or partial confession, whether
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CODE OF EVIDENCE.
judicial or extra judical, the accused may show, to avoid the effect of
such confession, not only by other evidence that it was not true, but
that it was produced by error, by threats, promises, false hopes, con-
fusion of mind, or any other efficient cause. And in every such case,
the confession is to have such weight as the judges of the fact shall,
in their discretion, give to it, under a consideration of all the circum-
stances of the case.
Art. 238. In all cases the whole confession must be taken together;
that is to say, every thing said, done, or written, at the time of the
confession, tending to enlarge, restrict, or modify it, must be re-
ceived as part of the evidence.
CHAPTER IV.
Of estoppels.
Art. 239. There being no other conclusive evidence than in the
cases especially provided for by the legislative authority of this state,
that species of conclusive evidence known in the English law of evi-
dence by the name of Estoppel," is abolished, and can operate as
direct, or, according to its nature, presumptive, evidence only.
GENERAL PROVISION.
Art. 240. Nothing in this Code contained shall be so construed as
to dispense with the proof required by the Civil Code, or other sta-
tutes, to give effect to certain contracts, or testamentary or other dis-
positions, or to enforce the registry or recording of certain acts, or to
prove legitimacy or filiation, legitimation or civil condition.
A CODE OF REFORM AND PRISON
DISCIPLINE.
4 M
INTRODUCTORY TITLE.
CHAPTER I.
f
Design of the code of reform and prison discipline.
Art. 1. The Code of Reform and Prison Discipline will regulate the
manner in which prisoners of different descriptions are to be confined
and treated, as well before as after judgment.
Art. 2. This Code is intended not only to direct the structure and
police, of the prison for the confinement of convicts, but also of those
which are rendered necessary for the detention of the accused before
trial, for the education of juvenile offenders, and of a House of Refuge
and employment for those who have undergone the sentence of the law.
All these objects are necessarily connected: no one part can be ab-
stracted without materially injuring the effect of the others.
Art. 3. Safe custody is an object common to the prisons; but reform
is the intent of all the institutions. Punishment also enters into the
design of the Penitentiary, the School of Reform, and that department
of the House of Detention destined to receive those convicted of mis-
demeanors; but forms no part of the system, so far as it applies to the
custody of the accused before trial, and to their relief and employment
after having suffered the sentence of the law.
Art. 4. In all these establishments the means by which reformation
is expected, are, reflection, instruction, habits of industry, and religion.
To promote these is one of the first duties of the men who are charged
with the important and honourable task of superintending the different
departments of these institutions.
Art. 5. Reformation cannot be expected while the vicious are per-
mitted to associate with each other or with the innocent. This kind of
seclusion, therefore, is a protection not a punishment; and is conse-
quently necessary in the House of Detention and Refuge, as well as in
the Penitentiary and School of Reform.
Art. 6. All the officers appointed under this Code, from the inspector
to the under-keeper, have a moral as, well as a legal duty to perform.
In no department of the government is there a greater call for the best
qualities of the mind-a strong moral sense and unfeigned belief in
religion (for they must be teachers of both,) firmness in preserving
order, moderation and temper in enforcing it, close attention to dis-
cover the evil propensities that have led to the crimes of the convicts,
and a knowledge of human nature to apply the proper correctives. The
officers of a prison are no longer jailors and turnkeys charged with the
custody of the body only; they must minister to the diseased minds
and correct the depraved habits of their patients. The law raises them
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to their true station. They have higher functions, and on the manner
in which they shall perform them depends the success of the whole
system to which this Code is intended to give vigour and effect.
Art. 7. This view of the intent of the law and of what it expects
from the ministers who are to execute it, are placed at the introduction
of the Code to impress them with a true view of the spirit which dic-
tated it, and direct them, in those points in which the law may be made
more efficacious, by a zealous and enlightened performance of their
several duties.
Art. 8. From the magistrates and others, who are constituted visiters,
much also is expected; the right given by this Code is not intended as
a complimentary privilege, conferred only to satisfy curiosity. Pub-
licity and the superintending care of upright magistrates and intelligent
men, is the best incentive to a zealous performance of duty. Faithful
and active officers will court their investigation; those who are negli-
gent or corrupt, will fear it.
Art. 9. The progress of reform in the female department will depend
chiefly on those of their own sex, who may accept the invitation given
by the law, to carry their example and precept, and persuasive exhorta-
tion to the place of punishment, and convert it into a school for religion,
industry, and virtue.
CHAPTER II.
Division of the work.
Art. 10. This Code is divided into three books. The first treats of
the different places of confinement, their construction, and officers; the
second directs the treatment of the persons confined; and the third
contains the regulations for the House of Refuge.
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BOOK I.
PLACES OF CONFINEMENT-OF THEIR CONSTRUCTION AND OFFICERS.
TITLE I.
OF PLACES OF CONFINEMENT.
CHAPTER I.
Of the different denominations of places of confinement.
Art. 11. There shall be provided at the expense of the state, in such
place in the first judicial district as the general assembly shall direct,
three separate and distinct places of confinement.
Art. 12. One of them shall be called the House of Detention. In
this shall be confined:
1. Persons who, in the cases allowed by law, are detained in order
to secure their attendance as witnesses on criminal trials in the first
district.
2. Those who are committed for trial on an accusation of MISDEMEA-
NOR in the first district.
3. Persons sentenced to simple imprisonment (whether in close cus-
tody or not) for any period, whether in the first district, or in any
other district, for more than sixty days.
4. Those who may be committed for a disturbance in court, for any
such disobedience to the orders of a court or a magistrate as may be
punished by imprisonment, for the non-payment of a fine, or for the
breach of a recognizance, or any other engagement entered into in the
course of a prosecution for an offence, in the first district, in the cases
where such confinement is authorized.
5. All those who may, in the first district, be committed for trial on
an accusation of CRIME.
Art. 13. Another of the said places of confinement shall be called
the Penitentiary. In which shall be confined all those convicted of
crime in any part of the state, who, at the time of conviction, had
attained the age of eighteen years.
Art. 14. The third shall be called the School of Reform. In it shall
be placed:
1. All those convicted of crime (not punishable by imprisonment for
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life) who have not attained the age of eighteen years, in whatever part
of the state the conviction may have been had.
2. All persons under the age of eighteen years who shall be sen-
tenced to be placed in the said prison, on conviction, for misdemeanor,
in cases where power for that purpose is specially given by law.
3. All young vagrants whose commitment shall, under that denomi-
nation, be permitted by law.
Art. 15. Prisoners committed before trial, and offenders sentenced
to simple imprisonment for a term less than sixty days, in any of the
other judicial districts, except the first, shall be confined in the jail of
the parish in which they shall be committed, or in which they shall be
sentenced.
Art. 16. Offenders sentenced to simple imprisonment in any part of
the state, for any term exceeding sixty days, shall be confined in the
House of Detention.
Art. 17. While imprisonment for debt continues to be authorized by
the laws of the state, it must be regulated by the CIVIL LAW, and this
Code contains no other provision in relation to it than that contained
in the following article.
Art. 18. No person shall be imprisoned in any of the three places of
confinement directed to be provided by this chapter, in pursuance of a
final judgment, or for want of bail, in a civil suit.
CHAPTER II.
Of the construction of the different places of confinement.
Art. 19. The House of Detention shall be so constructed as to keep
in four divisions, entirely separate the one division from the other, the
prisoners comprehended in the following classes:
1. The first class shall consist of the male persons described in the
first, second, third, and fourth numbers of the enumeration contained
in the second article of the preceding section.
2. The second class shall consist of female prisoners of the above
description.
3. The third class shall consist of male persons committed for trial
on an accusation of CRIME.
4. And the fourth class shall consist of female prisoners confined for
trial on an accusation of CRIME.
Art. 20. This building must also contain separate accommodations
for each individual of the third and fourth classes, and for each of the
persons who shall be sentenced to simple imprisonment in close custody ;
and two enclosed yards-the one for the male and the other for the fe-
male prisoners of the other classes, in which they may take exercise
and pursue such employment as is hereby permitted.
Art. 21. The Penitentiary shall be so constructed as to contain :
1. Cells for those sentenced to solitary confinement for murder.
2. Ranges of separate cells, one for each convict, with an enclosed
court for each cell.
3. A hydraulic or other machine to be put in operation by manual
labour, so disposed that a convenient number of prisoners may work at
it, separated from each other by a wall.
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!
4. School-rooms sufficient for the instruction of a class of persons.
5. An infirmary.
6. All other necessary buildings for the safe-keeping and support of
the prisoners, and for the preservation of their health.
Art. 22. The Penitentiary shall also have a separate enclosure, con-
taining similar cells for female convicts, so disposed as to prevent all
means of communication with the male convicts.
Art. 23. The School of Reform shall contain:
1. Separate divisions for the sexes.
2. A separate dormitory for each prisoner.
3. Proper courts or shops for the employment of the prisoners.
4. A school-room for each division.
5. An infirmary.
Art. 24. Each of the three places of confinement described in this
section shall be so constructed as to be separate from the others; and
if for the convenience of building they should be contained in the same
outer wall or enclosure, they must be so arranged as to give the pri-
soners in the one no means of communication with those in any other.
Art. 25. All the prisons must be so constructed as to be at all times
completely ventilated, and in winter warmed by flues communicating
with the different cells.
TITLE II.
OF THE OFFICERS AND ATTENDANTS OF THE SEVERAL PLACES OF CONFINEMENT
AND THEIR SEVERAL DUTIES.
CHAPTER I.
Of the appointment of the officers.
Art. 26. There shall be appointed by the governor, for the several
places of confinement above mentioned, the following officers and
attendants:
Art. 27. For the House of Detention, a warden and a matron. The
warden, with the approbation of the inspectors hereinafter mentioned,
shall name so many under-keepers, and the matron, with the like
approbation, so many assistants as by the inspectors shall be deemed
necessary for the safe-keeping of the persons committed to their charge,
and for the necessary attendance on them.
Art. 28. For the Penitentiary, a warden, a matron, a teacher, a
physician, two chaplains, and a clerk.
Art. 29. The warden and matron shall respectively appoint so many
assistants as the inspectors shall deem necessary.
Art. 30. For the School of Reform, a warden, a matron, and a fe
male teacher; and the keeper and matron shall respectively appoint so
many assistants as the inspectors shall deem necessary.
Art. 31. The physician and the chaplains appointed for the Peniten-
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tiary shall also attend the two other places of confinement; and the
teacher of the Penitentiary shall instruct such of the persons confined
in the House of Detention as choose to receive lessons, at such times
as shall be directed by the inspectors.
CHAPTER II.
Of the board of inspectors and their duties.
Art. 32. The governor shall appoint five persons to form a board of
inspectors.
Art. 33. The duties of the inspectors shall be to visit the House of
Detention, the Penitentiary, and the School of Reform, at least once in
every week, to see that the duties of the several officers and attendants
are performed to prevent all oppression, peculation, or other abuse,
in the management of the several institutions; and to report to the
legislature such means as may suggest themselves for their improvement.
Art. 34. They shall also, with the approbation of the governor, form
rules for the government of the several places of confinement and the
employment of the persons confined therein, not inconsistent with this
Code. They shall direct the purchase of all implements and materials
for the manufactures carried on therein, and the sale of the articles
manufactured which are not wanted for the use of the prisoners, and
they shall direct the manner in which all purchases of provisions and
other supplies for the prisoners shall be made.
Art. 35. The inspectors shall cause accurate accounts to be kept in
separate sets of books of all expenditures and receipts in each of the
places of confinemeut.
Art. 36. They shall on or before the first day of December, in
every year, make a report in writing to the legislature, of the state
of the said places of confinement and of the House of Refuge. The
report shall contain the name, age, sex, place of residence and nativ-
ity, time of commitment, term of imprisonment, profession or trade
prior to commitment, and employment in prison, of each person who
has been committed during the preceding year to either of said places
of confinement: noticing also those who may have escaped, or died,
or who were pardoned, or discharged, designating the offence for
which the commitment was made, and whether for a first or repeated
offence, and when and in what court, or by whose order and in such
return the inspectors shall make such observations and give such
information as they may deem expedient for making the said institutions
effectual in the punishment and reformation of offenders.
Art. 37. The inspectors have power to examine any person on oath,
relative to any abuse in the said places of confinement, or other matter
within the purview of their duties.
Art. 38. They have power to make rules for the preservation of pri-
son discipline and for promoting industry, morals, and education, in
the said several institutions, which shall not be contrary to any pro-
visions of this Code or of other law, and to impose and cause to be
inflicted the punishments they shall have ordained for the breach of
such rules, and for all such infractions of prison discipline, as are
made punishable by this Code.
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Art. 39. They shall direct in what manner the rations for the sub-
sistence of the prisoners shall be composed, in conformity with the
general directions on that subject hereinafter contained.
Art. 40. They shall also perform such duties as are required of them
in the subsequent parts of this Code.
Art. 41. Each inspector shall have the right to visit and inspect
the said places of confinement and the House of Refuge whenever he
shall deem it expedient; and the keepers, wardens, clerks, and other
officers of the several prisons are bound to submit to them, or either of
them, whenever called on, the books, papers, and accounts, belonging
to the prisons, to which such officers belong, and to admit them to the
prisoners therein confined.
Art. 42. It is the duty of the inspectors to call at least once in every
three months upon the proper officers of each place of confinement
for an exhibition of the accounts, to examine the same, and compare
the entries with the vouchers; to examine the persons employed in
the said places of confinement on oath, whenever it shall be deemed
necessary, and to report any abuses or oppressions that may come to
their knowledge, to the governor, if any of the officers appointed by
him are implicated therein, or themselves to reprimand or dismiss
any other person employed when it is found necessary.
Art. 43. The inspectors in their weekly visits to the several places
of confinement shall speak to each person confined therein, out of the
presence of any of the persons employed therein; shall listen to any
complaints that may be made of oppression or ill conduct of the per-
sons so employed; examine into the truth thereof, and proceed therein.
according to the directions of the last preceding article when the
complaint is well founded; and on such visits they shall have the
calendar of the prisoners furnished to them by the warden, and see by
actual inspection whether all the prisoners named in the said calendar
are found in the said prison in the situation in which by the said calen-
dar they are declared to be.
Art. 44. They shall also hear and determine all charges of breach of
prison discipline that shall be reported against any prisoner, when the
punishment to be inflicted is close confinement for more than twenty-
four hours.
Art. 45. A majority of the said inspectors shall constitute a board,
and may do any of the acts required of the said inspectors by this Code.
Two of the inspectors shall be a quorum for the weekly visitations here-
by directed to be made.
Art. 46. The governor, the president of the senate, the speaker of
the house of representatives, the mayor of the city of New Orleans,
the judges of the supreme court, of the criminal court, and of the first
district, the attorney-general, and the directors of the Asylum for
Orphan Boys, are authorized to attend the meetings of the inspectors, to
take part in their deliberations, but not to vote, to attend their weekly
inspections; and each of the persons abovementioned may do any
act which the said inspectors individually are authorized to perform.
Art. 47. Each of the directresses of the Poydrass Asylum, and the
members of any female society that shall be formed for that purpose,
are permitted and requested to exercise all the powers and perform
all the duties with respect to the female prisoners in either of the
establishments, that any individual inspector is hereby authorized to
perform.
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Art. 48. Each inspector shall receive for every day's attendance
in the performance of the duties required by this act the sum of
dollars, provided the same shall not amount, in any one
dollars.
year, to more than
Art. 49. It is made the important and special duty of the inspectors,
in their individual or joint visits to the convicts, to enter into friendly
conversation with them, to impress on their minds the importance of
moral and religious instruction, of industry, and orderly conduct, and
to encourage them to a perseverance in this course by a promise of aid
and patronage, in the manner hereinafter directed on their discharge.
Art. 50. The inspectors shall have power to make contracts for the
labour of the convicts in the Penitentiary and School of Reform with
such mechanics as will learn them a useful trade, under the restric-
tions prescribed in the title concerning the treatment of the convicts.
Art. 51. No inspector, nor any officer or other person employed in
any of the said places of confinement, shall sell any article for the use
of either of them, or of the persons confined therein during their con-
finement, or shall purchase any of the manufactures made therein, or
derive any emolument from such purchase or sale either to himself or
to any relation in the ascending or descending line, or any collateral
within the third degree, other than such emolument as is hereinafter
expressly allowed; and any offender against this provision shall be
fined five hundred dollars and imprisoned in close custody thirty days.
Art. 52. No work shall be performed nor any article manufactured
by any of the prisoners for the use of any of the inspectors or officers.
of either of the prisons, or of any of the attendants employed therein,
or for the use of the families of either of them; nor shall they or
either of them receive under any pretence whatever from either of
the said prisoners, or any one on his behalf, any sum of money or
gift of any assignable value, under the penalty of five hundred dollars.
fine, and six months' imprisonment in close custody.
Art. 53. The inspectors have power, in case of the necessary and
temporary absence or disability of either of the wardens, or of any of
the officers employed in either of the prisons, to employ a substitute
during such absence or disability; which substitute shall, for the time
being, perform all the duties, have all the authority, and be liable to
all the penalties as the officer himself.
CHAPTER III.
Of the duties common to the wardens of the penitentiary, house
of detention, and of the school of reform.
Art. 54. Each of the said wardens shall reside in the prison over
which he presides.
Art. 55. Each of them shall visit every cell and apartment, and see
every prisoner under his care, at least once in every day, and when he
visits the female prisoners, he shall be accompanied by the matron.
Art. 56. They shall each keep a journal, in which shall be regularly
entered the reception, discharge, death, pardon, or escape, of any pri-
soner; and also, the complaints that are made and the punishments that
are inflicted for the breach of prison discipline, as they occur, the visits
CODE OF REFORM AND PRISON DISCIPLINE.
699
of the inspectors, the chaplain and the physician, and all other occur-
rences of note that concern the state of the prison, except the receipts
and expenditures, the account of which are to be kept in the manner
hereinafter directed.
Art. 57. On the commitment of a prisoner accused of CRIME in the
House of Detention, and when convicted of a crime on his entrance in
the Penitentiary or School of Reform, there shall be entered on the
journal the sex, age, apparent height, and accurate description of the
person, last place of abode, and nativity of the prisoner.
Art. 58. On the death of any prisoners, the warden shall immedi-
ately give notice to the board of inspectors, and shall take the measures
directed by the Code of Procedure for summoning a jury of inquest.
Art. 59. The wardens shall severally make a report in writing to
the governor every six months of all the persons in custody, specifying
the times of commitment and discharge, by pardon or expiration of
sentence, or acquittal, and the escape or death and removal from the
one prison to another of each person who has been in their custody,
severally, during the preceding six months, together with the general
state of the prison, and such observations and information as the warden
may think necessary, or as the governor or inspectors shall direct.
Art. 60. The wardens shall appoint the under-keepers, and dismiss
them at their pleasure.
Art. 61. They shall see that the duties required by this Code in their
respective prisons are performed by the several officers thereof, and shall
report any default both to the governor and to the board of inspectors.
Art. 62. The wardens severally have power to arrest and conduct
before a magistrate for commitment any person who shall make himself
liable to any penalty under this Code.
Art. 63. Each warden shall put up in every apartment and cell of
the prison under his care a printed copy of the rules for the govern-
ment thereof, and shall cause them to be explained to those who cannot
read or are unable to understand them.
Art. 64. He shall report all infractions of the rules to the inspectors,
and with the approbation of one of them, may punish the offender in the
manner directed in the chapter concerning the treatment of prisoners.
Art. 65. No warden shall absent himself from the prison under his
care for a night, without permission, in writing, from one of the inspec-
tors, or in the execution of some duty that requires such absence, or
by reason of some unforeseen accident which renders it necessary; and
whenever such accident occurs, it is to be noted on the journal.
Art. 66. The warden shall not be present when the inspectors make
their stated visits to the prisoners under his care.
Art. 67. The further duties and powers of the wardens in their
respective prisons, are detailed in the chapter relative to the reception
and treatment of prisoners, and in other parts of this Code.
CHAPTER IV.
Of the duty of the under-keepers in the penitentiary and house of
detention.
Art. 68. The under-keepers must be men of sobriety, honesty, and
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CODE OF REFORM AND PRISON DISCIPLine.
industry. They must understand reading, writing, the first rules of
arithmetic, and must speak, for the common purposes of life, the French
and English languages.
Art 69. It is the duty of the under-keepers to visit each prisoner
three times in every day, to see that his meals are regularly delivered
according to the prison allowance; to set those to work who are per-
mitted or condemned to labour; and to see that they are instructed
therein, according to the rules established by this Code, and to the
further directions of the warden.
Art. 70. Whenever any convict shall complain of such illness as to
require medical aid, the under-keeper shall immediately give notice to
the physician.
Art. 71. Each under-keeper shall have a certain number of prisoners
assigned to his care.
Art. 72. He shall make a daily report to the warden, of the health,
conduct, and industry of the prisoners, and a like report to the inspec-
tors when required.
Art. 73. No under-keeper shall be present when the warden or the
inspector visit the prisoners under his particular care.
Art. 74. The under-keepers shall obey all legal orders given by the
warden for the government of the prison. They shall be removeable
by him at pleasure; and by the inspectors on proof of ill conduct in their
offices. All orders to the under-keepers must be given through or by
the warden.
Art. 75. They must remain in the prison night and day, and shall
not be employed either by the warden or the inspectors in any other
place. They shall not absent themselves without permission from the
warden.
Art. 76. The under-keepers shall act also as guards; for which pur-
pose arms and munitions shall be provided by the state, to be put into
their hands by the warden when they are on guard, and at other times
when circumstances require it; but in their daily occupations they are
not to be armed.
Art. 77. No under-keeper shall receive from any one confined in
either of the said prisons, or from any one in behalf of such prisoner,
any emolument or reward whatever, or the promise of any, either for
services or supplies, or as a gratuity; under the penalty of fine of one
hundred dollars and imprisonment for thirty days; and when any breach.
of this article shall come to the knowledge of the warden or inspectors,
the under-keepers offending shall be immediately discharged.
Art. 78. The compensation of the under-keepers shall be
CHAPTER V.
Of the duties of the chaplains.
Art. 79. The chaplains shall be, the one a clergyman of the Catholic
church, the other of some one of the Protestant persuasions; each shall
receive a salary of
Art. 80. The Catholic chaplain shall, at least twice in every week,
visit every person of his own persuasion in the Penitentiary and School
CODE OF REFORM AND PRISON DISCIPLINE.
701
of Reform, and such persons as are confined in the House of Detention
in close custody.
Art. 81. The Protestant chaplain shall, in like manner, perform the
same duty to all the prisoners who are of any Protestant persuasion.
Art. 82. It is the duty of both to instruct the prisoners under their
care in the duties of religion and morality; to exhort them to repent-
ance and amendment; to show the folly and danger of vice; and to
encourage those who are confined for a term of years with the hope of
being reinstated in the good opinion of the world by a perseverance in
the principles of honesty and the practice of industry; to impress on
their minds that it is not their punishment but their crime that has
degraded them, and that sincere repentance and amendment may cause
both to be forgotten by man, as the sin will surely be forgiven by God.
To those sentenced to confinement for life, they must hold out no falla-
cious hope of pardon, but teach them to fix their hopes on another
world, and prepare for it by contrition and repentance.
Art. 83. The Catholic chaplain shall have free access to the cells of
all the Catholic convicts; and the Protestant chaplain to those of the
Protestant convicts; and either of them to the cell of any convict of
any religion who requests it.
Art. 84. Any clergyman of any religion or religious sect may be
admitted to see any convict who may require his attendance, or at his
own request, at proper and reasonable hours, under the direction of the
warden or inspectors.
Art. 85. The chaplains shall be furnished with forms of returns which
shall contain the names of the prisoners, with blank columns, in which
shall be entered, by the chaplain, the date of each visit he shall pay,
and opposite to each name the observations he may make on the
character and demeanor of the convict with respect to his moral and
religious improvement.
Art. 86. Each of the said chaplains shall perform divine service at
least once on every Sunday in the School of Reform.
Art. 87. Selections from Scriptures, and such other books of religious
and moral instruction as shall be recommended by the chaplains and
approved by the inspectors, shall be distributed among the convicts.
CHAPTER VI.
Of the qualifications of the teachers, and the duties of the teacher
of the penitentiary.
Art. SS. The teachers must be men of good moral characters; they
must understand the French and English languages, and be capable of
teaching reading, writing, arithmetic, book-keeping, navigation, and
land-surveying. They need not reside in the prison.
Art. 89. The teacher of the Penitentiary, for the first six months after
the convict shall be confined therein, must attend at the cells and work-
ing courts of all the male convicts who cannot read and write, and give
separate lessons, in turn, to as many of them as his time will permit,
calculating seven hours in each day, in every day, Sundays included.
Art. 90. At the end of the said six months he may form classes, not
exceeding eight in each class, of such of the convicts as shall have
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CODE OF REFORM AND PRISON DISCIPLINE.
obtained favourable certificates of conduct during that period, as to
industry, morality and order, from, the warden and chaplain, which
class he shall assemble, at least once in every two days, in the school-
room for instruction, for the space of one hour.
Art. 91. No convict shall be admitted into a class until after he has
obtained such certificate, and shall be degraded therefrom for miscon-
duct for a greater or less interval, according to the nature of the offence
and the sentence of the inspectors.
Art. 92. Those convicts who can write and read, but who are desirous
of instruction in any of the other branches taught by the teacher, may
also be instructed in their cells after three months' good behaviour, cer-
tified as aforesaid, and may be admitted into a class on a like certificate
of six months.
Art. 93. Convicts condemned to imprisonment for life cannot be
admitted into a class. They may receive such instruction, if they need
and deserve it, as will enable them to read, but it must be given in their
cells or courts.
Art. 94. The teacher shall make rules for the preservation of disci-
pline and order in the several classes, which he shall submit to the
inspectors and the warden, and, if approved by them, shall be in force;
but no punishment shall be inflicted greater than those directed by the
rules established in this Code.
Art. 95. The individuals who are to compose the different classes
shall be designated by the teacher with the approbation of the inspec-
tors, after they shall have consulted the warden.
Art. 96. One rule of the instruction by classes shall be, that no con-
versation shall be permitted between the individuals composing it on
any other subject than that relating to the art or science in which they
are instructed; and to enforce this rule, it is made the duty of the
teacher never to leave the class while they, or any two of the indi-
viduals composing it, are assembled.
Art. 97. The individuals composing the class shall be conducted by
an under-keeper separately to and from the place of instruction, and
shall not, on any pretence whatever, be suffered to speak to any one
by the way.
Art. 98. The teacher may, with the approbation of the inspectors,
select one or more of the convicts of sufficient instruction and ability,
who has been committed for a term of years, to assist in the duties of
his office, provided no person shall be selected who has not a certificate
of good behaviour for at least two years, both from the chaplain and
warden; and until the expiration of the said two years, and until such
selection shall be made, the inspectors are authorized, if they deem it
necessary, to employ such assistant, at a salary not exceeding two-
thirds of that given to the principal teacher.
Art. 99. If any convict shall have, prior to his commitment, cultivated
any of the arts, of painting, sculpture, or architecture, as a profession,
or, in the opinion of the inspectors, shall have a decided genius for
either of them, he shall, after obtaining a certificate of six months' good
behaviour, be permitted to employ a portion of the time allotted for
labour, not exceeding one hour in each day, to his improvement therein;
and per cent. of his earnings, after paying for his support, shall,
if he request it, be appropriated to the purchase of implements and
materials for the business; provided, that this indulgence shall be sus-
CODE OF REFORM AND PRISON DISCIPLINE.
703
pended or forfeited, at the direction of the inspectors, by any breach
of the rules of the prison.
Art. 100. Convicts committed for a term of years, who cannot read,
write, and cipher, may be punished, by order of the inspectors or the
warden, for refusing to receive instruction therein. All other scientific
instruction is an indulgence to be obtained only by a perseverance in
good behaviour.
Art. 101. The female convicts who are uninstructed in reading and
writing and the first rules of arithmetic, shall be taught by the matron,
or such assistant as the inspectors may direct, and at such hours as they
shall appoint.
CHAPTER VII.
Of the duties of the teacher of the school of reform.
Art. 102. The teacher of the School of Reform must possess the
same qualifications that are required in the teacher in the Penitentiary.
He need not reside in the establishment.
Art. 103. He shall instruct the male and female departments of the
School of Reform in the several branches of learning, at the times and
in the manner prescribed for that purpose in the chapter of this Code
relative to instruction in the School of Reform.
Art. 104. He shall receive a yearly salary of
CHAPTER VIII.
Of the duties of the physician.
dollars.
Art. 105. The physician shall visit every prisoner in the prisons
twice in every week, and oftener if the state of their health requires it,
and shall report once in every month to the inspectors.
Art. 106. He shall attend immediately on notice from the warden
or keeper that any person is sick.
Art. 107. He shall examine every prisoner that shall be brought
into the Penitentiary and School of Reform before he shall be confined
in his cell.
Art. 108. Whenever, in the opinion of the physician, any convict in
the Penitentiary or School of Reform, is so ill as to require removal,
the warden shall direct such removal to the infirmary of the institution
in which he is confined; and the prisoner shall be kept in the infirmary
until the physician shall certify that he may be removed without injury
to his health, and he shall then be removed to his cell.
Art. 109. He shall visit the patients in the infirmary at least once in
every day, and he shall give such directions for the health and cleanli-
ness of the prisoners as he may deem expedient, which the warden
shall have executed, provided they shall not be contrary to the pro-
visions of this Code, or inconsistent with the safe custody of the said
prisoners; and the directions he may give, whether complied with or
not, shall be entered on the journal of the warden and on his own.
Art. 110. The physician shall inquire into the mental as well as the
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bodily state of every prisoner; and when he shall have reason to be-
lieve that the mind or body is materially affected by the discipline,
treatment, or diet, he shall inform the warden thereof, and shall enter
his observations on the journal, herein after directed to be kept, which
shall be an authority for the warden for altering the discipline, treat-
ment, or diet, of any prisoner until the next meeting of the inspectors,
who shall inquire into the case, and make orders accordingly.
Art. 111. He shali have power to cause any one infected by a con-
tagious or infectious disorder to be separated from the other prisoners;
and if three other licensed practitioners of physic shall certify, that the
disease is infectious, and that the prisoner cannot, without danger to
the others, be kept within the walls of the prison, the inspectors shall
make an order for his removal and confinement elsewhere, until he
shall die or recover.
Art. 112. The physician shall keep a journal, in which, opposite to
the name of each prisoner, shall be entered the state of his health; and
if sick, whether in the infirmary or not, together with such remarks as
he may deem important; which journal shall be open to the inspection
of the warden and the inspectors; and the same, together with the
return provided for in the first article of this section, shall be laid be-
fore the inspectors once in every month, or oftener if called for.
Art. 113. The prisoners, under the care of the physician, shall be
allowed such diet as he shall direct.
Art. 114. No prisoner shall be discharged while labouring under a
dangerous disease, although entitled to his discharge, unless by his own
desire.
Art. 115. The infirmary shall have a partition between every two
beds, and no two patients shall occupy the same bed; and the physician
and his attendants shall take every precaution in their power to prevent
all intercourse between the convicts while in the infirmary.
Art. 116. The physician shall select from among the young delin-
quents in the School of Reform two or more who have given evidence
to the satisfaction of the warden, the teacher, and the chaplain, of
determination to reform, and who shall have made sufficient progress
in their education, as his assistants in the two infirmaries, to whom he
shall teach the art of compounding and administering remedies, and
such other branches of medical knowledge as they may be capable of
acquiring; which assistants shall be employed in the care and attend-
ance on the sick, and shall be exempt from all other labour while they
preserve the confidence of the physician, and are guilty of no breach of
the rules of prison discipline.
CHAPTER IX.
Of the duties of the clerk of the penitentiary.
Art. 117. The clerk shall, under the direction of the inspectors,
keep regular accounts of all the expenses of the Penitentiary, of the
proceeds of the articles manufactured therein, and of the purchase of
materials to keep the convicts employed, when they do not work by
contract, as is hereinafter provided. He shall also open an account
with each convict, in which such convict shall be charged with the cost
CODE OF REFORM AND PRISON DISCIPLINE.
705
of his prosecution and conviction, and with his maintenance in prison,
including only his food and clothing and such drugs and medicines as
he may be supplied with; and shall be credited with his labour at such
estimation of its value as shall be equitable, according to its quantity
and quality, agreeable to the rates paid for like labour in the city of
New Orleans; or (when he works by contract) according to the con-
tract price of such labour.
Art. 118. The inspectors shall direct the mode in which the accounts
shall be kept, and shall direct the agent they shall employ for making
purchases and for selling the articles manufactured in the Penitentiary,
(which agent shall in no case be the clerk); to furnish the clerk with
accounts and bills of all such purchases and sales.
Art. 119. The clerk shall deliver to the agent all such articles manu-
factured in the prison as are not done for manufacturers by contract,
and which are not wanted for the use of the same, keeping an account
as well of what is so wanted and retained, as of what is delivered.
Art. 120. The books of accounts shall be kept in the prison, and
shall be open to the inspection of the warden and the inspectors.
Art. 121. The clerk shall keep a regular account of all the furniture,
tools, and implements of trade provided for the prison, and shall sub-
mit the same to the inspectors.
Art. 122. He shall receive such remuneration for his services as
shall be determined by the inspectors, not exceeding
dollars per
annum.
CHAPTER X.
Of the duties of the matrons.
Art. 123. The matrons shall reside in their respective prisons. They
and their female assistants shall, under the direction of the inspectors,
have the exclusive care and superintendence of the female convicts.
No male person, except the chaplain, shall be permitted to visit them,
but in the presence of the matron.
Art. 124. She shall employ them in making, mending, and washing
the clothing for the prisoners. She shall cause them to be taught
needle-work and other employments of housewifery, keeping them all
apart at night, and as much as the nature of their employment will
allow during the day. She shall report daily to the warden all infrac-
tions of order, or other material occurrence; and shall inflict such
punishment, consistent with this Code, as the inspectors and teacher
shall direct.
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BOOK II.
OF THE TREATMENT OF THE PRISONERS IN THE SEVERAL PLACES OF
CONFINEMENT.
TITLE I
OF THE PRISONERS CONFINED IN THE HOUSE OF DETENTION.
Art. 125. The prisoners of the first class, that is to say, those con-
fined in order to secure their attendance as witnesses, shall be under
no other restriction than that which is absolutely necessary to prevent
their escape from the prison. Good and wholesome food, comfortable
bedding, and other necessaries, shall be provided for them at the public
expense; or they may be allowed to provide it for themselves; and
every such prisoner shall be immediately liberated on his giving the
security for his appearance to testify, that is required by law.
Art. 126. Those who are committed for want of bail, in the first
district, on an accusation of misdemeanor:
Those who are condemned to simple imprisonment (not in close cus-
tody), in the first district, or who are removed on a like sentence from
any other district :
Those who may be committed for the non-payment of a fine, or for
the breach of a recognizance, or other engagement, entered into in the
course of a prosecution for an offence:
Form a second class of prisoners. They need not be separated from
each other during the day, but each shall be lodged at night in separate.
dormitories, unless the numbers in the prison shall render it impossible.
Art. 127. Those who are committed for want of bail on accusations
of crime, form a third class. These shall be kept in separate cells or
apartments both night and day, and shall have no communication
whatever with each other.
·
Art. 128. All the above classes of prisoners shall be entitled to
good wholesome food and drink, according to the prison regulations
hereinafter provided for, and to beds and bedding, at the public ex-
pense; or they shall be permitted to purchase or receive such food
and beds, of a better quality, at their own expense, also under the
restrictions contained under the prison regulations.
They may receive the visits of their families and friends, and their
counsel, at all reasonable hours.
They shall be allowed the free use of books, of pen, ink, and paper,
at their own expense.
Art. 129. The prisoners sentenced to close confinement, shall each
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707
+
be confined in a separate apartment or cell, furnished with the prison
allowance of bedding, and a chair, and a table; but may provide their
own bedding if they think fit. They shall be restricted to the prison
allowance of drink and food, unless the court shall order differently in
the sentence, or the physician shall officially certify that their health
will be impaired by confining them to it.
They shall not be permitted to receive any society in their places
of confinement, without permission of two of the inspectors in writ-
ing, and the time of such visit shall be prescribed and limited in the
permission, and shall in no case exceed one hour at a time.
They shall not be debarred the privilege of consulting with their
counsel, or receiving the visits of their physician and chaplains, at all
reasonable times.
Art. 130. No prisoner in this house shall be forced to perform any
labour. No prisoner shall be confined in irons; but if he shall have
made an attempt to break the prison, or have assaulted the keeper or
other person employed in the house, he may be confined in a straight-
jacket or arm straps.
Art. 131. All the prisoners in this house may be permitted to work
at such trades and manufactures as they may desire and may be deemed
by the inspectors proper to be carried on in the house, without infring-
ing the rules herein before laid down; and the inspectors shall pro-
vide the tools and implements, and the materials for carrying on such
manufactory as they may deem expedient, and shall allow to such
of the prisoners as may choose to work thereat three-fourths of the
net proceeds of their labour, and shall pay the same as it is earned to
the prisoner; the other fourth shall be deposited in bank in the man-
ner hereinafter directed.
Art. 132. The daily allowance of food to a prisoner in the house of
detention shall be the same as is allowed to a soldier in the army of
the United States. The bedding shall be the same as is directed for
the prisoners in the Penitentiary.
Art. 133. The inspectors shall make prison regulations for the pre-
servation of order in the House of Detention, not inconsistent with
this Code, and for the supply of food and other accommodations to
such of the persons detained as are allowed to procure the same at
their own expense; but no wine or spirituous liquors shall be intro-
duced but by order of the physician, stating that the health of the
party, in whose favour it is given, requires it.
TITLE II.
OF THE TREATMENT OF THE PRISONERS IN THE PENITENTIARY.
CHAPTER I.
Of the reception of the convicts.
Art. 134. Every convict sentenced to imprisonment in the Peniten-
tiary shall, immediately after the sentence shall have been finally
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pronounced, be conveyed, by the sheriff of the parish in which he was
condemned, to the Penitentiary, under secure guard; and when it
shall be deemed necessary, the officer commanding the regiment of
the place where the court sits, shall furnish a guard for that purpose,
on the order of the court entered on its minutes.
Art. 135. On the arrival of a convict, immediate notice shall be
given to the physician, who shall examine the state of his health; he
shall then be stripped of his clothes and clothed in the uniform of the
prison, that is suited to his offence, in the manner hereinafter provided,
being first, if necessary, bathed and cleaned.
Art. 136. The convict shall then be examined by the clerk and the
warden, in the presence of as many of the under-keepers as can con-
veniently attend; and his height, apparent and alleged age, com-
plexion, colour of hair and eyes, and length of his feet to be accu-
rately measured, shall be entered in a book provided for that purpose,
together with such other natural or accidental marks, or peculiarity
of feature or appearance, as may serve to identify him; an instru-
ment shall also be provided by which the profile of his face shall be
delineated, and it shall be marked with his name and pasted in the
said book, under the description of his person; and if the convict can
write, his signature shall be placed under the said description of his
person.
Art. 137. All the effects on the person of the convict, as well as his
clothes, shall be taken from him and specially mentioned, and pre-
served to be restored to him on his discharge, or delivered to his
curator, where one shall be appointed, pursuant to the provisions
hereinafter contained.
Art. 138. If the convict is not in such ill health as to require being
sent to the infirmary, he shall then be conducted to the cell assigned
to him, where he shall be kept in solitude for forty-eight hours, inter-
rupted only by the necessary attendance of the keeper; during this
period, designed for reflection, neither books nor employment of any
kind shall be allowed him.
Art. 139. On the third day the chaplain shall visit him in his cell,
and shall endeavour to impress on his mind as well the wickedness
as the danger of vicious and unlawful pursuits, and he shall exhort
him to obedience and industry during the term of his service, and urge
the utility of acquiring the means of an honest support by labour on
his discharge. The warden shall then examine him, and put him to
such labour as he shall seem fittest for, consulting his inclinations as
well as his physical powers.
CHAPTER II.
Of the labour of the male convicts committed for a term of years.
Art. 140. Although labour forms a part of the sentence, it is an-
nexed as an alleviation, not an aggravation of punishment. The
punishment is imprisonment in solitude. All that the law entitles
the patient to under this confinement, is food, clothing, and lodging,
sufficient for the preservation of health, but all of the coarsest kind;
his health and life are the objects of attention, not his appetite or com-
·
CODE OF REFORM AND PRISON DISCIPLINE.
709
fort. Other indulgences are the reward of industry, obedience, repen-
tance, and reformation; these are the effects of labour; and labour,
therefore, is permitted as the means of attaining them.
Art. 141. The advantages that are to be gained by perseverance in
labour, obedience, moral conduct, and a desire of reform, are:
1. A better diet.
2. A partial relief from solitude, and the means of education by the
visits and lessons of the teacher.
3. Permission to read books of general instruction.
4. The privilege of receiving the visits of friends or relations at
proper periods.
5. Admission into a class for instruction, after a period of good
conduct that shall evince a sincere desire to reform.
6. The privilege, after a long probation, of labouring in society.
7. A proportion of the proceeds of his labour on his discharge.
8. A certificate of good conduct, industry, and skill in the trade he
has learned, which may enable him to regain the confidence of society.
Art. 142. As these advantages are to be gained only by industry
and good conduct, they are suspended and may be forfeited by idleness
or irregularity; and at the expiration of the two days given for reflec-
tion, after the admission of the convict, the articles of this section are
to be read to him, and he shall make his election whether he will avail
himself of the indulgence they offer; should he consent, he shall be
immediately set to labour; if he refuse, the offer shall not be repeated
in less than six days; after the second refusal, it can only be repeated
in fifteen days; and after a third, he cannot be permitted to accept it
until a month's time shall have elapsed; after which, he shall be con-
sidered as having made his final election.
Art. 143. From among the convicts who have not, before commit-
ment, worked at any trade, the warden shall select a sufficient number
to perform the offices of cooking and other necessary attendance in the
prison. He shall prefer for this purpose those who have the shortest
term to serve; but all these shall be locked up in separate cells at night.
Art. 144. If the convict has been used to any employment or trade
that can be advantageously pursued consistent with the system estab-
lished by this Code, he shall be furnished with the implements of such
trade, and be allowed to employ himself at it. If his trade is one that
cannot, in the opinion of the inspectors, be conveniently carried on, or
is inconsistent with the system, he shall be taught an employment the
most analogous to the one to which he has been bred.
Art. 145. If the convict has not been bred to any trade, the warden
shall employ him at such business as is best adapted to his habits of life
and his strength, consulting as much as may be possible the inclination
of the convict; and in the selection of employment, regard is to be had
more to giving him an honest mode of subsistence after his discharge,
than to the profit of the prison.
Art. 146. The regular occupation of each convict shall, for the first
six months of his confinement, be carried on in the outer enclosure of
his cell, in solitude, interrupted only by the visits of the inspectors,
the warden, the chaplain, the teacher, the physician, the person (if any)
employed to instruct him in his trade, and the attendants with the
regular meals, and by the exercise mentioned in the next article.
Art. 147. For the preservation of the health of the prisoners, each
of them shall be made to labour one hour in every day at a handcrank
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CODE OF REFORM AND PRISON DISCIPLINE.
hydraulic machine, or some other, calculated to exert the muscular
powers in a manner beneficial to health. This crank, or other parts of
the machine to which bodily power is to be applied, shall be so placed
and divided, that each prisoner may labour without having it in his
power to have any communication with the others employed in the
same labour, and they shall be conducted separately to and from the
place, under the care of an under-keeper, who shall prevent any person
from having any communication with them by word or otherwise.
Art. 148. During the first six months of confinement the teacher
shall give to the convicts who cannot read or write, a lesson to each, in
regular rotation, employing himself at least seven hours in each day,
until a class shall be formed, when he shall divide his time equally
between the individual prisoners entitled to instruction and the classes.
Art. 149. At the expiration of six months each convict who has
received the lessons of the teacher during that time, and such other
convicts as are desirous of receiving further instruction, shall, provided
they obtain a certificate of good conduct and industry in labour from the
warden, the chaplain, and teacher, have the privilege of being admitted
into a class, which shall receive instruction together in the school-room
but no class shall contain more than eight; no more than one class shall
be assembled at a time, and the individuals composing it shall be con-
ducted separately to and from the place of instruction.
Art. 150. The warden may, when necessary for the instruction of a
prisoner in any business or trade, with the permission of the inspectors,
employ a person of good character for that purpose, who shall, at pro-
per hours, have access to such prisoner.
Art. 151. The warden may, with the consent of the inspectors, make
contracts for the labour of the convicts, or any of them, with mechanics
or manufacturers; but a condition of the contract shall be, that the con-
victs shall be taught, and employed in, some useful trade; and for that
purpose a foreman or instructor, to be employed by the contractor, but
approved by the warden and inspectors, shall be admitted to the enclo-
sures adjoining the cells of the convicts, at convenient times during the
hours of labour.
Art. 152. The first contract shall not be for a longer period than
eighteen months; and all subsequent contracts shall be made by auction.
and for one year; and the applicants for the contract shall be permitted,
in the presence of the warden, to examine the convicts as to their skill
and ability.
Art. 153. If any contractor or his agent shall give or promise to any
of the convicts any article of food, drink, or other article, not permitted
by this Code or by the prison regulation, the contract shall be forfeited,
and each offender shall pay a fine of five hundred dollars, and be impri-
soned not more than thirty nor less than ten days in close custody.
Art. 154. After being employed for eighteen months in solitary
labour, the convict, if he can procure from the warden, the inspectors,
the chaplain, and the teacher (if he have been under his instruction), a
certificate of industry, good conduct, and a disposition to reform, may
be admitted to a working class, not exceeding ten, to work at some
useful trade; but no one shall enjoy this privilege the value of whose
labour during the eighteen months shall not have exceeded the expense
of his clothing and food, unless he shall have lost by sickness a number
of days' labour, of which the value shall be equal to the deficiency in
his account.
CODE OF REFORM AND PRISON DISCIPLINE.
711
Art. 155. Each working class shall be separately employed in a
different work-shop, without any communication the one class with
another, and shall be under the direction of an under-keeper, who shall
permit no communication between the individuals composing it but that
necessary for the business, and any breach of this rule shall be punished
by close confinement for such time as the warden shall direct, and by
a return to solitary labour.
Art. 156. At the dawn of day the convict shall be made to rise and
to clear out his sleeping cell, which shall then be locked; he shall then,
after washing, commence his labour, which shall continue, including
the hour for exercise at the machine and the attendance on the teacher
and the time of receiving the visits of the other officers, from the rising
to half an hour before the setting of the sun every day except Sundays,
excepting one hour for breakfast and one hour and a half for dinner,
and the supper shall be given when the work of the day is finished.
Art. 157. After sunset and before it is dark, all the convicts shall
be locked up in their separate cells.
CHAPTER III.
Of the treatment of prisoners confined for life.
Art. 158. The convicts who are confined for life on a third convic-
tion, for an offence which if it had been the first, would have been
punishable by imprisonment for a term of years only, shall, in all
respects, be treated like the prisoners confined for a term, except that
the prison uniform shall be different, and shall designate by three dif-
ferent colours the number of their offences.
Art. 159. Those convicted of murder without any aggravating cir-
cumstances, and for rape, shall be strictly confined to their respective
cells and adjoining courts; in which last they may be permitted to
labour, except for two months consecutively in every year, commencing
on the anniversary of their crime, during which period they shall only
come into the court during the time necessary to cleanse the cell; and
on the anniversary of the commission of their crime the convict shall
have no allowance of food for twenty-four hours, during which fast he
shall receive the visit of the chaplain, who shall endeavour by exhorta-
tion and prayer to bring him to repentance.
Art. 160. Murderers of all description and those convicted of rape,
shall receive no visits except from the inspectors, the wardens, officers
and attendants of the prison, and from those who are constituted visiters
of the prison. They shall have no books, but selections from the Bible
and such other books of religion and morality as the chaplain shall deem
proper to produce repentance and fix their reliance on a future state.
Their uniform and diet shall be such as is hereinafter directed.
Art. 161. Infanticides shall be treated in all respects like those guilty
of unaggravated murder, except that the confinement without labour
shall continue three months consecutively in each year.
Art. 162. Assassins shall be confined without labour for six months
consecutively in every year, and treated in the manner above directed.
Art. 163. Parricides shall not be indulged in the performance of labour
at any time, but shall be closely confined in a cell, without a court, but
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of such dimensions as shall be sufficient for their health, and in other
respects shall be treated like other murderers.
Art. 164. When any two of the crimes punishable with imprison-
ment for life, such as rape and murder, are combined, or where murder
under trust is perpetrated by assassination, or parricide by poison, the
convict shall receive the same treatment as is directed for parricides,
except that on the return in each month of the day on which the crime
was committed, they be debarred from all allowance of food for twenty-
four hours, and shall, during such fast, receive the visits and exhorta-
tion of the chaplain.
Art. 165. The fast shall not be suffered when the physician shall
certify that it will be dangerous to the health of the convict.
Art. 166. Those convicts for life who have not learned to read, may
be instructed by the teacher.
Art. 167. No murderers, in any degree, shall have any communica-
tion with other persons out of the prison than the inspectors and visiters;
they are considered dead to the rest of the world.
Art. 168. The cells of murderers (in any degree) shall be painted
black within and without, and on the outside thereof shall be inscribed,
in large letters, the following sentence:
"In this cell is confined, to pass his life in solitude and sorrow,
A. B. convicted of the murder of C. D. [by assassination, parricide, &c.
describing the offence, if of an aggravated kind]; his food is bread of the
coarsest kind; his drink is water, mingled with his tears: he is dead
to the world; this cell is his grave; his existence is prolonged that he
may remember his crime, and repent it, and that the continuance of
his punishment may deter others from the indulgence of hatred, avarice,
sensuality, and the passions which lead to the crime he has committed.
When the Almighty, in his due time, shall exercise towards him that
dispensation which he himself arrogantly and wickedly usurped towards
another, his body is to be dissected, and his soul will abide that judg-
ment which Divine Justice shall decree.”
Art. 169. The same inscription, changing only the words "this cell"
for the words "solitary cell in this prison," shall be made on the outside
of the prison wall, in large white letters on a black ground. The inscrip-
tions shall be removed on the death of the convicts to which they relate.
Art. 170. Inscriptions shall in like manner be made on the cells of
those convicted of rape, and on the outer wall of the prison, to this
effect: "In this cell" [or on the outer wall, "In a solitary cell in this
prison,] forgotten, or remembered only to be detested and despised,
lies A. B. condemned to solitude and abstinence during life, for a cow-
ardly and brutal injury to a woman."
CHAPTER IV.
Of the clothing and diet of the convicts.
Art. 171. The uniform of the prison shall be a jacket and trousers
of cloth or other warm stuff for the winter, and lighter materials for
the summer. The form and colour shall be determined by the inspec-
tors; but they shall be the same for all criminals condemned for a term,
except those who have been convicted of a repetition of offences; these
CODE OF REFORM AND PRISON DISCIPLINE.
713
shall have distinctive marks on their dress, showing the number of their
convictions.
Art. 172. Each of the convicts shall have such number of coarse
linen shirts and trousers of the same material in summer as will be
sufficient to give them a change twice in every week; and all shall be
provided with other articles of clothing sufficient to preserve health and
cleanliness.
Art. 173. The convicts for murder shall be clothed in black outer
garments, spotted and streaked with red. Those confined for life, for
any other crime, shall wear such distinctive marks on their clothing as
shall be directed by the inspectors, to designate their respective crimes.
Art. 174. The prison allowance of food is one pound of brown
wheaten bread and one pint of mush morning and evening each day;
the allowance of bread may be varied by giving three days in the week
a pound and a half of Indian corn bread instead of wheaten. Water is
the only liquor allowed in the prison ration.
Art. 175. Prisoners who labour and preserve the rules of the prison
are allowed, in addition to the prison daily allowance, a gill of mo-
lasses, and for four days in the week two pounds of beef or pork without
bone, daily, made into six messes, varied from salt to fresh, with vege-
tables, and for three other days soup.
Art. 176. Those whose labour and industry have entitled them to
work in classes, shall also be indulged with a pint of small beer, or
cider diluted with water, or a mixture of vinegar and water sweetened
with molasses once every day.
Art. 177. No prisoner, while confined to his cell without labour, is
to receive any thing but the prison allowance.
Art. 178. No tobacco in any form shall be used by the convicts; and
any one who shall supply them with it, or with wine, or spirituous or
intoxicating fermented liquor, shall be fined two hundred dollars, and
if an officer, be dismissed.
Art. 179. Any convict whose labour shall exceed the expense of his
support, according to the account herein directed to be kept, shall have
the privilege of directing one-tenth part thereof to be expended in the
purchase of books, to be approved by the inspectors, or such articles,
excepting food or liquors, as he may desire, and as may not be incon-
sistent with the prison rules.
Art. 180. Any convict, other than those convicted of murder or
rape, who has been steadily employed for eighteen months, and is guilty
of no infraction of the prison discipline, may, once in every six months,
receive the visit of any friend or relation, of the same sex, for not more
than fifteen minutes, in the presence of a keeper, on a written permis-
sion signed by two inspectors.
Art. 181. No person, who is not an official visiter of the prisons, or
who has not a written permission from one of them; or from one of
the inspectors, is allowed to visit the same. The official visiters are,
the governor, president of the senate, members of the general assembly,
the secretary of state, the attorney general, the judges of all the courts
in the state, the mayor, recorder, and members of the city council of
the city of New Orleans, the directors of all the charitable incorporated
societies in the city of New Orleans.
Art. 182. None but the official visiters can have any verbal or written
communication with the convicts, nor shall auy visiter whatever be
permitted to deliver or receive from any of the convicts any letter or
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message whatever, or to supply them with any article of any kind,
under the penalty of two hundred dollars fine.
Art. 183. It is the duty of any visiter, who shall discover any abuse,
infraction of law, or oppression, immediately to make the same known
to the board of inspectors, or to the governor if the inspectors or either
of them are implicated.
Art. 184. No male visiter shall visit the female convicts but in the
presence of the matron.
CHAPTER V.
Of the treatment of the female convicts.
Art. 185. The female convicts shall, as well as the male, each be
lodged in separate cells.
Art. 186. Such of those confined for a term of years as are capable,
by their habits or strength, shall be selected by the matron to perform
the domestic services of the female division and for the washing of the
clothes for the men's department. Those who are so employed shall,
during the day, be kept under the inspection of the matron or her as-
sistants, and not suffered to have any conversation but relative to the
business in which they are engaged.
Art. 187. The others, not so selected, shall be employed in needle-
work, spinning, or other suitable occupations. They shall, on receiv-
ing the necessary certificate of order and industry from the matron and
chaplain, be entitled to the same advantages of education and social
labour that are directed for the male convicts. The classes for educa-
tion and for labour may consist of such number as the matron, with
the approbation of the warden or inspectors, shall desire.
Art. 188. The regulations with respect to diet are applicable to the
female department, except that the matron may allow to the industrious
and orderly, tea for their breakfast, if they prefer it to mush.
Art. 189. The dress for the female convicts shall be regulated by the
matron, with the approbation of the inspectors.
Art. 190. Female convicts for life shall be treated in the same man-
ner as the males, but under the direction of the matron.
TITLE III.
OF THE SCHOOL OF REFORM.
CHAPTER I.
Of the persons to be admitted into the school of reform.
Art. 191. All persons under the age of eighteen sentenced to impri-
sonment and labour (unless for life), and all vagrants under that age
and above six years, shall be sent to the School of Reform.
CODE OF REFORM AND PRISON DISCIPLINE.
715
Art. 192. All minors above six and under eighteen years of age,
who have no visible means of honest subsistence and are not supported
by any friend or relation; all common beggars within the said age of
eighteen; all females under seventeen years of age, who live by pros-
titution in a DISORDERLY HOUSE, shall be considered as vagrants under
the last article, and may, by order of the mayor of New Orleans, or the
parish judge and two other magistrates, be committed to the School of
Reform.
Art. 193. All minors above nine and under the age of fifteen, who
shall commit an offence of which they shall be acquitted on account of
the want of sufficent discretion to know the nature of the offence, may,
at the discretion of the court, be committed to the School of Reform.
Art. 194. In like manner a minor, who being accused of a crime
and shall be acquitted by showing that at the time of the commission
thereof he was under the age of nine years, may, at the discretion of
the court, be sent to the School of Reform.
Art. 195. In cases of misdemeanor, committed by a minor under
eighteen years of age, and punishable by simple imprisonment in close
custody, the court may also, at their discretion, send the defendant to
the School of Reform.
Art. 196. In exercising the discretion given by the three last preced-
ing articles, the court must consider that the object of the School of
Reform is not only to punish by restraint, but to separate the juvenile
offender from the association of vice, to afford him the means of educa-
tion, religious and moral instruction, and instruction in some mechanic
art, so as to make him a useful member of society; and that where,
from the circumstances of the case, these objects will probably be
attained without committing the defendant to the School of Reform, that
this public institution ought not to be so burthened.
CHAPTER II.
Of the mode of reception.
Art. 197. Every one committed to the School of Reform shall be
thoroughly cleansed, and clothed in the uniform of the house, which
shall be comfortable and adapted to the season.
Art. 198. The name, age, sex, place of nativity of the person com-
mitted, names and place of abode and occupation of his parents, the cause
of commitment, and the authority by which it was made, shall be
entered in a book specially provided for that purpose by the warden.
Art. 199. The chaplain, or teacher, and the matron (if the person
committed be a female), or the warden (if a male), shall interrogate the
party as to the course of life he has pursued, and shall make an abstract
of his answers in the book above mentioned; but no other means
shall be used, but those of persuasion, to obtain the truth on such inter-
rogatory.
Art. 200. After some time given to solitary reflection, proportioned
to the age and degree of depravity of the offender, which shall not ex-
ceed, in any case, twelve hours, the advantages of industry, obedience.
and attention to instruction, and the certainty of punishment for a con-
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trary course, shall be impressed upon him by the warden, or, if a female,
by the matron, and he shall then be instructed and employed as is
hereinafter directed.
CHAPTER III.
Of the instruction in the school of reform.
Art. 201. The time of school instruction shall be one hour, to com-
mence at sunrise, and one hour after labour in the afternoon.
Art. 202. The children shall be taught reading and writing in the
French and English language, and arithmetic; and such of the boys as
show an aptitude for learning, in the opinion of the teacher and warden,
shall be taught geography, land surveying, and navigation.
Art. 203. Before the instruction begins, select portions of the scrip-
tures shall be read morning and evening.
Art. 204. Premiums of books and badges of merit shall be given to
the scholars by the warden, on the recommendation of the teachers, to
the children who shall show the most diligence and be distinguished
for orderly conduct.
Art. 205. A small collection of entertaining and instructive books
shall also be provided for the use of those who have badges of merit.
Art. 206. The teacher has no greater power of correction than is
given by law in ordinary schools, and it extends only to faults com-
mitted in relation to the literary instruction.
Art. 207. No punishment shall be inflicted on any of the females for
faults committed in school but by the matron, or in her presence.
Art. 208. The boys and girls shall be taught separately, and the
matron, or her assistant, shall always be present during the instruction
of the girls.
Art. 209. Examinations of the scholars shall be had once every three
months, in the presence of the inspectors and such of the visiters as
choose to attend.
Art. 210. The teacher shall use the system of mutual instruction,
and shall endeavour to qualify such of the children, of both sexes, as
show a particular aptitude, to be themselves teachers according to the
same method.
CHAPTER IV.
Of employment in the school of reform.
Art. 211. All the hours between sunrise and sunset that are not
hereby appropriated to instruction, to meals, or to relaxation and exer-
cise, must be employed in labour.
Art. 212. The labour to be performed shall be such as, in the opin-
ion of the inspectors, shall be best calculated to procure a subsistence
for the prisoners when they shall be restored to liberty.
Art. 213. Each of the boys shall be taught a mechanic art, and for
this purpose the warden shall, with the approbation of the inspectors,
CODE OF REFORM AND PRISON DISCIPLINE.
717
contract with mechanics to find materials, to send foremen to the pri-
son to superintend their work and teach them the different trades, pay-
ing a reasonable sum for the value of their labour.
The necessary
tools and implements shall be provided by the institution.
Art. 214. The foremen so employed by the mechanics shall be men
of good characters, approved by the inspectors; they shall remain in
their respective workshops during the hours of labour, preserve order
therein, and keep the boys at work, teaching them carefully all the
branches of the trade; but they shall inflict no punishment, unless by
direction of the warden and in his presence, and such punishment shall
be such moderate correction as a master is authorized by law to inflict
on an apprentice.
Art. 215. The foremen shall make daily reports to the warden of
each boy under his care, for which purpose he shall keep a calendar
containing the names of each of them, on which he shall make marks,
denoting offences, or extraordinary diligence, or good conduct, which
shall be shown daily to the warden.
Art. 216. Great care shall be taken to suit the employment to the
physical force and constitution of each boy; and the warden shall fre-
quently visit the workshops, and see that unreasonable tasks are not
imposed by the foremen.
Art. 217. If no such contract should be offered for the labour of the
boys as the warden and inspectors shall deem advantageous, proper
persons may be employed by the inspectors to instruct them in some.
mechanic art.
Art. 218. Besides the mechanic arts the boys shall be exercised for
two periods in each day (not exceeding half an hour each time) in
some laborious employment, that shall require as much as possible the
exercise of all the muscular powers, to strengthen and fit them for any
hard labour to which they may afterwards be called; for this purpose
a hydraulic or other machine, to be moved by manual labour, shall
be constructed in the enclosure of the School of Reform, and a mast,
with yards and standing and running rigging, shall be erected, on
which they shall be taught to climb, and prepare themselves for a sea-
faring life.
Art. 219. The tread-mill shall not be introduced into this or any
other of the places of confinement established by this Code.
Art. 220. The girls shall be taught needle-work, and be employed
in washing, ironing, baking, and other works of housewifery; and
they may also be taught such trades as women are usually employed
in, at the time and place in which they are confined. The matron
shall superintend this part of their employment, and none but female.
instructors in any branch, except the school-master, shall be admitted
into their department.
Art. 221. The children of both sexes shall, by turns, be employed
in the menial service of the establishment to which they belong-
waiting at the table, cleaning the workshops and eating-rooms, and
other places for the common resort of the persons confined; but each
one is bound to sweep and clean his own cell.
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CHAPTER V.
Of the distribution of time in the school of reform.
Art. 222. At the dawn of day all the prisoners, except those in the
infirmary and those confined to solitude for a breach of prison disci-
pline, shall leave their cells; each one shall put up his bed, remove
every thing that ought to be removed, and sweep the cell, which shall
be locked.
Art. 223. Each one shall then wash, and twice every week, when
the weather will permit, shall bathe. They shall then assemble in the
school-room, when a select portion of scripture and prayers shall be
read; the school shall then be opened, and the instruction continue
for one hour; immediately after which breakfast shall be served.
Art. 224. After breakfast half an hour shall be allowed for exercise
in the court, but always in the presence of the warden, or some officer
of the establishment for the boys, or of the matron or her assistant for
the girls; immediately after the expiration of this half hour, the boys
shall be put to labour, for another half hour, on the machine men-
tioned in the last preceding chapter, and the girls be allowed to con-
tinue their exercise.
Art. 225. The boys shall then be conducted to the workshops,
where they shall be employed for three hours and a half; at the ex-
piration of which time they shall wash and go to dinner, and after
dinner shall have another half hour for exercise, and labour on the
machine, and then be employed in the shops until an hour before
sunset, when they shall again assemble for instruction in the school
for an hour; after the evening school, half an hour shall be given for
exercise, and then each one shall be locked in his separate cell.
Art. 226. In the summer the inspectors may dispense with the hard
labour in the heat of the day, and appropriate it to instruction or
relaxation, at their discretion.
Art. 227. On the certificate of the physician, that the labour, or
any part of it, cannot be undergone by any one of the persons con-
fined without danger to his health, it shall be remitted or modified by
the warden.
CHAPTER VI.
Of diet, lodging, and clothing.
Art. 228. The diet shall be, for breakfast, coffee made of parched
grain, and mush alternately, both sweetened with molasses, and corn
bread; for dinner, beef or mutton soup, with vegetables and corn
bread, and a quarter of a pound of the flesh of which the soup is made,
for each, for four days in the week-three days, fish or pease soup
without meat; supper, the same as the breakfast. At all the meals,
there must be bread of sufficient quantity to satisfy their hunger;
CODE OF REFORM AND PRISON DISCIPLINE.
719
and when the state of the market will permit, wheat bread may be
substituted for corn. Water is the only drink allowed.
Art. 229. The inspectors may, when circumstances require it,
change the ration of food, but it must always be coarse, but abundant
and nutritive.
Art. 230. Each of the persons confined shall lodge in a separate cell,
shut with a door having grates at the top and bottom, which, in cold
weather, the occupant may cover with a sliding shutter, on the inside.
The cell shall contain a box for a night-pan, and a sheet of canvas,
stretched by loops at the four corners and suspended by hooks in the
corners of the cell for a hammock, with sheets and one blanket for
summer, and two blankets and a corn-husk mat in winter. This bed-
ding shall be aired and washed at such periods as the physician or
warden shall direct.
Art. 231. For the boys the clothing shall consist of a cap, a shirt
and jacket and trousers of coarse linen or cotton, and shoes, for the
summer; a jacket and trousers of cloth, with socks and shoes, for the
winter; the linen to be changed once a week in winter and twice a
week in summer. The clothing for the girls shall be directed by the
matron with the approbation of the inspectors.
CHAPTER VII.
Of the police of the school of reform.
Art. 232. The warden shall see that every one confined in the male
department, excepting those in the infirmary, is locked up in his sepa-
rate cell, at the time for that purpose before designated, and that all
the fires in every part of the building are extinguished. No light,
under any pretence, is permitted in the cells; but lights shall be kept
during the night in the galleries and passages leading to them.
Art. 233. A reflected light may be thrown into the cells of such as
may desire to use the interval between the locking of the cell and nine
at night in reading or study, but it shall be continued in favour of those
only who can show the teacher on the following morning that they
have used it to advantage.
Art. 234. A watch shall be kept at night by one of the under-keepers,
and the warden may also employ with the keeper such of the boys, by
turns, as may show by their conduct that such confidence may be
reposed in them.
Art. 235. The roll shall be called of all the persons confined at the
opening of the school in the morning, and at night previous to the re-
tiring; and the names of all those employed in the different workshops
shall also be called at the hours of labour.
Art. 236. The meals shall be taken in the presence of the warden or
some other officer of the establishment. The males shall be divided
into classes of ten, who shall be seated at separate tables, and one of the
boys the most distinguished for his orderly conduct, in each class, to
be called the captain of the class, shall preside at each table; he shall
see that silence is observed during the meal, shall designate two of the
class, by regular rotation, to wait on the others, and take care that each
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CODE OF REFORM AND PRISON DISCIPLINE.
one receives his full allowance, and he shall report all breaches of or-
der to the warden.
Art. 237. The captain of the class may be degraded for negligence
or misbehaviour; and where several boys in a class are equally deserv-
ing, they shall have the distinction by turns weekly.
Art. 238. During the hours of recreation, no sports but those which
exercise the body shall be allowed, and no wagering permitted; but
the warden may award prizes for dexterity or skill.
Art. 239. The utmost attention must be paid to cleanliness in the
persons, clothing, and bedding, and every part of the establishment;
and it is part of the duty of all the officers employed, of the visiters,
and particularly of the physician, to report to the warden every infrac-
tion that may be observed of this rule. There shall be a bathing room
for each of the sexes, and all the persons confined shall be forced to
bathe at least twice in every week during the seasons that will admit of it.
CHAPTER VIII.
Of rewards and punishments.
Art. 240. The rewards shall consist of badges, prizes of books, the
use of the library, and marks of distinction and confidence, such as
being made captain of a class, watchmen, or monitors in the school.
They shall be conferred by the matron for the female department, by
the warden for the male, and by the inspectors for both; but all re-
wards, for merit in school, shall be on the recommendation of the teacher.
Art. 241. The punishments are, deprivations of distinctions formerly
obtained; such moderate personal castigation as does not draw blood,
leave a permanent mark, or unfit the child for immediate attention to
his instruction or labour; common diet; degradation from the class
confinement in solitude, or in a straight waistcoat or arm straps.
Art. 242. Irons or chains are not permitted under any pretence.
Art. 243. The teacher may preserve order in the school for boys by
the moderate chastisement mentioned in the second article of this sec-
tion; in the female school he may direct it to be done by the female
teachers. None of the other punishments can be inflicted but by order
of the warden, or, if on a female, but by order of the matron, subject
always to the revision of the warden.
Art. 244. All the punishments may be continued, or be directed to
cease by the inspectors, or any two of them.
Art. 245. Escape or attempt to escape, violence used towards any
officer of the establishment, a refusal to work or receive instruction, or
an attempt to persuade others to resist the authority of the officers, shall
be punished by all the kinds of punishment above enumerated, for such
period as the inspectors and warden, or inspectors and matron may direct.
Art. 246. The warden and the matron, with the approbation of the
inspectors, shall frame rules for the preservation of order, not contrary
to any thing contained in the Code or this chapter. The said rules
shall designate what breaches shall be punishable by any of the penalties
above enumerated and in what degree. These rules shall be put up in
the different work-rooms, schools, and cells-shall be read to every
one on his reception in the house, and shall be rigidly enforced.
;
Code of REFORM AND PRISON DISCIPLINE.
721
CHAPTER IX.
Of the discharge from the school of reform.
Art. 247. Discharges from the School of Reform may be either by
the expiration of the term of service or by apprenticeship.
Art. 248. Whatever may be the term of imprisonment designated
by law for the offence of which the party sent to the School of Reform
is convicted, such party cannot be discharged (unless by apprenticeship),
if a female, before she has attained the age of nineteen, or if a male,
before twenty-one.
Art. 249. Those who are sentenced for a term that will not expire
until after they have respectively attained the ages mentioned in the
last preceding article, and whose conduct has not entitled them to the
recommendation hereinafter mentioned for apprenticeship, shall, within
six months after attaining the ages aforesaid, be transferred to the Peni-
tentiary to serve out the remainder of the term.
Art. 250. Those who are entitled to the recommendation, and who
have not been apprenticed for some other cause, shall be discharged
after having attained the age of twenty-two if a male, or twenty if a
female, although the term of imprisonment in the sentence be for a
longer time.
Art. 251. The warden is authorized to bind out, by indentures of
apprenticeship, such of the prisoners confined as come within the de-
scription contained in the next succeeding article; and the indentures
shall impose the same obligations and give the same rights and remedies
as indentures of apprenticeship made by a parent or guardian, with the
assent of the minors, under the civil law of the state.
Art. 252. In order to be legally bound, pursuant to the last article,
the apprentice must have been two years in the School of Reform; he
must have learned to read, write, and understand the first three rules in
arithmetic; and must have obtained a certificate signed by the warden,
(and if a female by the matron), approved by the inspectors, declaring
that the moral conduct and diligence of the party has evinced such a
reformation as, in their opinion, will render it safe to receive him as
an apprentice.
Art. 253. The duration of the apprenticeship shall be until the party
bound shall attain the age of twenty-one if a male, or nineteen if a
female, unless, at the time of making the indenture, the male appren-
tice shall have attained nineteen years of age, or the female seventeen;
in which case the indenture may be for three years, if the term of the
sentence does not expire before; but if the term should expire before,
the apprentice cannot be bound for a longer term than the attainment of
twenty-one years for a male, or nineteen for a female, without his or
her consent, and then only for the said term of three years.
Art. 254. The male apprentices shall be put out, if possible, to me-
chanics of the same trade they have been taught in the School of Reform;
if no mechanic pursuing the same profession offers, some other demand-
ing, as near as may be the same species of labour, shall be preferred;
but whatever trade may have been taught to the apprentice, he may,
by his own consent, be apprenticed to a farmer or a mariner.
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CODE OF REFORM AND PRISON DISCIPLINE.
Art. 255. The conditions of the articles of apprenticeship shall be,
on the part of the apprentice, obedience to lawful commands, and dili-
gence, sobriety, and honesty; on the part of the master, that he will
perfect the apprentice in the trade he has been taught, or teach him the
new business if such be the case, that he will continue his schooling at
least one day in the week, that he will provide him necessary food,
clothing, lodging, medical assistance, and that, at the end of the period,
he will give him new clothing and a sum of money to be specified in the
indenture, and such as the warden and the master shall think reasonable.
Art. 256. No one shall be apprenticed to any one residing out of the
state, nor shall the indenture be assignable without the assent of the
apprentice.
Art. 257. The clause relating to the teaching and perfecting in a
trade or business, is not indispensable in the indenture of a female.
Art. 258. No female shall be indented to an unmarried man, or to a
married man living apart from his wife.
Art. 259. It shall be a condition in the indenture between the war-
den and the master, that a report shall be made once in every year of
the conduct of the apprentice to the warden; and if he has reason to
believe that his reformation is complete, that he will permit him, if
within the city of New Orleans or its suburbs, to visit the school and
converse with the others still there.
Art. 260. The convict at the time of his discharge, whether appren-
ticed or not, shall be comfortably clad, and the inspectors, at their dis-
cretion, may make him an allowance in money, or deliver him books
or tools, if they are satisfied with his conduct.
CHAPTER X.
of visits.
Art. 261. Besides the persons created visiters of all the places of
confinement by this Code, and those who may receive permission from
them, the parents or those related in the second degree to the persons
confined in the School of Reform, may visit them on stated days, to be
appointed by the warden; but when he is apprehensive that evil coun-
sels may be given, it shall always be in the presence of an officer.
TITLE IV.
OF THE PECUNIARY CONCERNS OF THE SEVERAL PLACES OF CONFINEMENT.
Art. 262. The board of inspectors shall appoint an agent, who shall
make all purchases and sales on account of all the several places of con-
finement, including the House of Refuge and Industry, keeping regular
sets of mercantile books for each of the said institutions, which may
be examined by the inspectors, the wardens, or any of the visiters.
Art. 263. The compensation of the agent shall be fixed by the in-
spectors, with the approbation of the governor.
CODE OF REFORM AND PRISON DISCIPLINE.
723
Art. 264. The regular supplies of provisions, and of all other arti-
eles consumed or used in the said institutions in considerable quantities,
shall be furnished by contract, and adjudged after advertisement to the
lowest bidder; but the wardens shall examine the articles furnished,
and have the right to reject such as are not of the quality contracted
for. The physician shall, in like manner, inspect the medicines and
hospital furniture.
Art. 265. All the articles manufactured in either of the said places
which are not made for manufacturers by contract, in the manner here-
inafter provided, shall be sold by the agent to the best advantage, under
the direction of the inspectors.
Art. 266. Regular and minute accounts of the receipts and expendi-
tures of each place of confinement, including the House of Refuge, shall
be furnished each quarter by the inspectors to the governor, and yearly
accounts to the legislature on the first day of their annual meeting.
Art. 267. All moneys appropriated by the legislature for the use of
either of the said places, shall be drawn for by the board of inspectors
as the same may be wanted, in favour of the cashier of the Louisiana
State Bank, and shall by him be carried to the credit of the board of
inspectors, in an account to be opened with them in their official capacity,
for the use of the particular institution for which the appropriation is
made (naming it in the account) between the bank and the inspectors.
Art. 268. Whenever the amount of money in the hands of the agent,
received on account of either or all of the institutions, shall exceed
three hundred dollars, he shall, within two days, deposit the same in
the said bank to the credit of the account opened with the inspectors
for the use of the prison to which it belongs.
Art. 269. No money shall be drawn from the bank, on either of the
said accounts, but by a draft signed by a majority of the inspectors,
specifying on account of which prison it is drawn, for what purpose,
and to whom the amount is due.
Art. 270. All accounts or demands against the prisons shall be ex-
amined, allowed, and paid by the inspectors; and when they meet to
settle such accounts, the agent shall act as their clerk and shall make
regular entries in the books of all receipts and expenditures, to the
account of the institution to which they belong; but a sum, not exceed-
ing one hundred dollars, may be placed in the hands of each warden,
and as much in the hands of the agent, to pay current expenses, to be
accounted for monthly to the inspectors.
Art. 271. If either the inspectors or the agent shall fail in making
any deposit in the manner and at the time directed by either of the
three last preceding articles; or if the inspectors, or either of them,
shall draw out of the bank any moneys belonging to or appropriated
for either of the said places of confinement, including the House of
Refuge, in any other manner than is above directed, the person so
offending shall pay a fine of five hundred dollars; and if any of the said
moneys which are either not deposited when by the said articles or
either of them they ought to be, or are drawn out of the bank contrary to
the directions of this chapter, shall be applied to any other use than to
that of the said institutions, or one of them, the person guilty of such
misapplication shall be dismissed from his office, be imprisoned, in close
custody, for sixty days, and pay a fine of one thousand dollars.
Art. 272. The wardens of the several prisons shall deliver to the agent
all the articles manufactured in their prisons respectively, which are
not necessary for the use of such prison, except those articles manufac-
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CODE OF REFORM AND PRISON DISCIPLINE.
tured in the House of Detention by the prisoners there who have pro-
vided their own materials, or who have made a different arrangement
with the inspectors for the disposal of the proceeds of their labour; and
excepting also the articles made for manufacturers by contract, in the
Penitentiary, School of Reform, and House of Refuge and Industry.
Art. 273. The wardens of the Penitentiary and of the School of
Reform shall each be allowed, in addition to their salaries,
per cent. on the gross amount of sales by the agent of the articles man-
ufactured in their prisons respectively, after deducting only the cost of
the materials employed in the articles so sold; and also
per cent.
on the amount of sums paid for the labour of the convicts by manufac-
turers; but this allowance shall be forfeited for every year in which
the wardens shall use any other means than those authorized by this
Code to induce the convicts to labour, either by way of punishment or
reward.
in
Art. 274. The average number of deaths in the principal penitentia-
ries of the United States having been found to be about
every hundred annually, (taking the average of the number of prison-
ers confined at all times during the year as the basis of the calculation
for the whole number,) as an encouragement to use greater care and
attention in lessening this rate of mortality, if the said proportion shall
be in any one year reduced in the Penitentiary of this state more than
one half of that average, the governor shall present to the physician
books, surgical instruments, or plate, of the value of
dollars,
which testimonial shall be doubled in value if the proportion be reduced
more than three-fourths.
Art. 275. The average number of re-convictions in the principal
cities of the Union having been found to be about
in every
hundred annually of those committed to the Penitentiary in those cities;
to lessen this proportion is the object of the reformatory part of prison
discipline. To incite, therefore, the officers to a zealous discharge of
this part of their duty, if in any one year, succeeding the third year
after this Code shall have gone into operation, the number of re-com-
mitments to the Penitentiary shall be less, in any one year, by one-half
than that proportion, an honorary testimonial of that fact, consisting of
a piece of plate of the value of
dollars, shall be presented by
the governor to the inspectors, the wardens, the chaplains, and teachers,
of the said prison; the value of which plate shall be doubled in any
year in which the said proportion is reduced to less than three-fourths
of the average above stated.
Art. 276. A similar testimonial shall be given to the matrons, if the
like reduction takes place in the re-commitments of the female convicts.
Art. 277. The amount requisite for the purchase of the testimonials
aforesaid, shall be taken from the recompense fund, created by the Code
of Criminal Procedure.
TITLE V.
OF THE DISCHARGE OF THE CONVICTS.
Art. 278. Whenever a convict shall be discharged by the expiration
CODE OF REFORM AND PRISON DISCIPLINE.
725
of the term to which he was condemned, or by pardon, he shall take
off the prison uniform and have the clothes which he brought to the
prison restored to him, together with the other property, if any, that was
taken from him on his commitment, that has not been otherwise legally
disposed of.
Art. 279. A copy of his account with the prison, made out in the
manner herein before directed, shall be given to him; and if the pro-
ceeds of his labour produce any balance in his favour, one half of such
balance shall be paid him.
Art. 280. Before the convict is dismissed, the chapter of the Penal
Code, "Of the Repetition of Offences," shall be read to him.
Art. 281. If the warden, the chaplain, and the teacher, have been
satisfied with the morality, industry, and order of his conduct, they
shall give him a certificate to that effect.
Art. 282. One or more of the inspectors shall be present whenever
a convict is discharged, who, as well as the officers of the prison, shall
inquire into his future prospects and designs; shall aid him in an
endeavour to procure an honest support, or to return to his friends;
shall exhort him to perseverance in habits of industry; and if he can
find no other employment, and is desirous of maintaining himself by
labour, the warden shall admit him into the House of Refuge, herein-
after provided for.
Art. 283. If the warden shall discover that any discharged convict,
instead of seeking to maintain himself by labour, shall associate with
the idle and profligate, he shall immediately proceed against him as a
vagrant, under the provisions for that purpose contained in the Code of
Criminal Procedure.
TITLE VI.
1
HOW THE PROPERTY OF PERSONS CONDEMNED FOR CRIME SHALL BE DISPOSED OF.
CHAPTER I.
Of the property of convicts condemned to imprisonment and labour
for a term.
Art. 284. The property of convicts condemned to imprisonment and
labour, may be administered by curators during the term for which they
are condemned. The letters of curatorship are revoked by their pardon
or discharge; but such revocation does not invalidate legal acts done by
the curator.
Art. 285. Any person who would be entitled to the curatorship of
the convict, had he died on the day judgment was pronounced against
him, shall be entitled to the curatorship.
Art. 286. The mode of proceeding to obtain the letters of curatorship
shall be the same as that prescribed in case of death, except that, instead
of alleging and proving the death of the party, the record of his con-
demnation shall be produced to the judge.
Art. 287. The curatorship, in case of condemnation, carries with it
726
CODE OF REFORM AND PRISON DISCIPLINE.
all the consequences, responsibilities, rights, and duties, that result from
a curatorship to a person deceased.
Art. 288. Curators and tutors may also be appointed to the persons
and estates of the children of the convict, in the like manner and to
the same persons who would have been entitled to the said offices if the
convict had been dead.
Art. 289. The curatorships and tutorships, mentioned in the last
article, are the same as to all rights, duties, and responsibilities, as they
would have been had the appointment been made after the death of the
convict; but they are revoked by his pardon or discharge, except in
cases where his sentence incapacitates him from exercising those trusts.
Art. 290. Those who would have been the heirs of a convict, sen-
tenced to imprisonment for a term, cannot take the estate out of the
hands of the curator; but if he have relations in the ascending or
descending line, whom he was bound by law to support, the curator
shall, out of the estate, provide for their sustenance.
Art. 291. All property given, or in any manner whatever accruing
to a convict in the Penitentiary, shall vest in his curator, if he be sen-
tenced for a term of years, to be disposed of in like manner with his
other property; or if he be sentenced for life, shall vest in his heirs.
CHAPTER II.
Of the disposition of the property of convicts sentenced to imprison-
ment for life.
Art. 292. The same disposition shall be made of the estate of a person
sentenced to imprisonment for life, as if he had died on the day sentence
was pronounced; and any last will and testament or codicil he may
have made prior to that time, shall take effect in the same manner as if
he had died on that day.
Art. 293. But no disposition of any estate, either by will or other-
wise, after the arrest for crime, of which the prisoner was convicted,
in the case of any crime whether the sentence is for life or otherwise,
shall be valid against the claim of the person entitled to a suit for the
private injury committed by the crime, unless such disposition was
made for a valuable and equivalent consideration to a person ignorant.
of the arrest.
CODE OF REFORM AND PRISON DISCIPLINE.
727
BOOK III.
OF THE HOUSE OF REFUGE AND INDUSTRY.
TITLE I.
OF THE DESIGN OF THIS ESTABLISHMENT.
Art. 294. The object of this establishment is twofold: the first, to
afford the means of voluntary employment to those who are able and
willing to labour, and gratuitous support to those who are not; the
second object is, to coerce those who, although capable of supporting
themselves, prefer a life of idleness, vice, and mendicity, to one of
honest labour.
Art. 295. As a House of Refuge, it is intended to afford to the dis-
charged convict the means of support by voluntary labour, until, by
degrees, he may regain the confidence of society; to prevent those
offences of which poverty and want of employment are the real or pre-
tended cause; and to relieve private charity from the unequal burthen
of supporting the mendicant poor.
Art. 296. As a House of Industry, the establishment is intended to
be a place of coercion and restraint for vagrants and able-bodied beg-
gars; for the first, because their mode of life raises a just presumption
that it is sustained by illegal depredations on a society to which they
do not properly belong; for the second, because, by false pretences
of inability, they impose on the charity of the public; and for both
as a measure of preventive justice, because their voluntary idleness,
unless corrected, will inevitably conduct them to vice, and crimes,
and punishment.
TITLE II.
OF THE DIFFERENT DEPARTMENTS OF THE HOUSE OF Refuge and INDUSTRY,
AND OF THE DESCRIPTION OF PERSONS ADMITTED TO, AND CONFINED IN
EACH.
Art. 297. The House of Refuge and Industry shall consist of two
departments the one for voluntary, the other for forced labour;
728
Code of REFORM AND PRISON DISCIPLINE.
both shall be under the direction of the same warden; and the one
shall be called the House of Refuge, and the other the House of
-Industry.
Art. 298. In the House of Refuge shall be admitted all such dis-
charged convicts as may be desirous of gaining a subsistence by labour;
all public mendicants who allege a want of employment as the reason
for asking public charity, or who, from age, infirmity, and poverty,
are incapable, in part or in the whole, to support themselves, and have
no relations who, by law, are bound to support them.
Art. 299. To the House of Industry shall be committed all vagrants
above the age of eighteen, and all able-bodied beggars, above that age,
who refuse to labour in the House of Refuge, or elsewhere, when
employment is offered to them.
Art. 300. In each department the women shall be kept separate
from the men, and they shall be under the superintendence of a
matron.
Art. 301. The building shall be so constructed as to separate the
two departments, and shall contain separate sleeping cells for each of
the persons confined in the House of Industry, and for each of the
discharged convicts in the House of Refuge. The paupers shall be
disposed of in comfortable apartments, in the manner that the warden
(subject to the direction of the inspectors) shall direct.
TITLE III.
OF THE OFFICERS OF THE HOUSE OF REFUGE AND INDUSTRY, AND OF THEIR
DUTIES.
Art. 302. This establishment shall be under the direction of the
board of inspectors, in this Code before provided for; who shall, in
relation to this, have the same powers and be subject to the same du-
ties that are before provided in relation to the other places of confine-
ment.
Art. 303. The warden shall be appointed by the governor, and the
warden shall appoint so many assistants as the inspectors shall deem
necessary.
Art. 304. The matron shall also be appointed by the governor,
and shall name such number of female assistants as the inspectors shall
direct.
Art. 305. The physician and chaplains shall also attend in their
professional capacities on the persons admitted or detained in the House
of Refuge and Industry.
Art. 306. The agent of the inspectors shall also be their agent for
the sales and purchases of this institution.
Art. 307. The accounts shall be kept by a clerk to be named by the
inspectors.
Art. 308. All the above named officers shall perform the same
duties and have the same powers, with respect to the House of Refuge
and Industry, and to the persons received or committed therein, as are
required of and are given to them respectively, with respect to the
CODE OF REFORM AND PRISON DISCIPLINE.
729
Penitentiary and the persons confined therein, except so far as the
same are modified by this title.
TITLE IV.
OF THE ADMISSION INTO THE HOUSE OF REFUGE, AND OF THE EMPLOYMENT OF
THE PERSONS ADMITTED.
Art. 309. The House of Refuge and Industry shall be erected as
near as conveniently may be to the city of New Orleans, not more
than one league distant from the City-Hall of the said city. Annexed to
it shall be a garden of at least three superficial acres.
The building
shall be made on a plan to be approved by the governor, and sufficient
in all respects to carry into effect all the provisions of this title.
Art. 310. Discharged convicts shall be admitted on their own appli-
cation to the warden, and on their agreeing to observe and be bound
by the rules of the said house, and the provisions of this title, of
which, so far as respects their conduct and obligations, an abstract
shall be read to them, and which they shall sign.
Art. 311. Able-bodied paupers, willing to labour but unable to find
employment, shall, in like manner, be admitted on their own applica-
tion, and on their signing an agreement to observe the rules of this
house and the provisions of this title which respects them.
Art. 312. All paupers, unable to provide for their own subsistence,
shall be admitted to the House of Refuge on the order of the jury of
police of the parish to which they belong, or of the city council, if
they belong to the city of New Orleans.
Art. 313. The inspectors shall provide the implements, materials,
and other means of giving employment to all the persons admitted
into the House of Refuge, adapted to their strength, age, sex, and
skill respectively, except such as shall, on examination by the physi-
cian, be declared incapable of doing any thing towards their support.
Art. 314. No person who shall be admitted into the House of
Refuge shall leave the same, without permission of the warden, or
without giving at least one month's notice of an intention to leave the
same; and any person absenting himself contrary to this rule, may
be arrested on a warrant to be issued by the warden and one of the
inspectors, and confined in a solitary cell for a term not exceeding
three days.
Art. 315. Any person who shall leave the House of Refuge, either
by permission of the warden or otherwise, and shall be found soliciting
charity as a PUBLIC BEGGAR, may be arrested, and by the warrant of
the parish judge and two magistrates of the parish, where such mendi-
cant may be found, shall be committed to the House of Industry as a
vagrant.
Art. 316. Any person admitted into the House of Refuge, who shall
refuse or neglect to perform the labour assigned to him, may, if the
inspectors shall think that the task assigned is not greater or more diffi-
cult than the strength or skill of the person can perform, be committed
4 R
730
CODE OF REFORM AND PRISON DISCIPLINE.
to the House of Industry for such time, not exceeding ten days for
each offence, as the inspectors shall direct.
TITLE V.
OF THE POLICE OF THE HOUSE OF REFUGE.
Art. 317. The inspectors may make rules for the preservation of
order and industry in the House, and may punish breaches thereof in
the manner such rules may direct, either by imprisonment in a solitary
cell, or by commitment to the House of Industry; provided that such
imprisonment shall not exceed three days, or such commitment be for
a longer term than ten days, for any offence against such rules.
Art. 318. The two sexes shall be kept separate in the House of
Refuge, in two distinct apartments; but boys, under seven years of age,
may be kept with their mothers, or, if they have none, by proper
nurses, under the care of the matron.
Art. 319. Children of paupers, between the ages of seven and eigh-
teen, may be sent to the School of Reform by the inspectors, at their
discretion, when the friends or relatives of such children do not pro-
vide for their education and support.
Art. 320. The matron shall apportion the tasks of the females in both
departments of the House of Refuge and Industry, and shall superintend
their labour, and report all delinquencies to the warden or inspectors,
to be furnished in the same manner as those of the males.
Art. 321. The warden and matron respectively shall appoint, from
among the persons admitted into the House of Refuge, a male and
female teacher, who shall give lessons in reading, writing, and arith-
metic, to such of the persons admitted or confined as may be ignorant
of these branches of learning, at such hours as the warden shall direct.
Art. 322. No wine, or spirituous or intoxicating liquors of any kind,
shall, under any pretence, be used by those admitted into the House of
Refuge or of Industry, unless by prescription of the physician.
Art. 323. Permission may be given to such of the persons as are
most orderly and industrious to see their friends out of the House on
Sundays, or to attend divine service in the city of New Orleans.
TITLE VI.
OF THE HOUSE OF INDUSTRY, ITS POLICE, AND THE EMPLOYMENT OF THE PER-
SONS CONFINED THEREIN.
Art. 324. The time and place of labour, and the intervals given for
other purposes, shall be the same in the House of Industry as that
directed by this Code for the convicts in the Penitentiary.
Art. 325. The prison ration for those who labour and for those who
are idle shall be the same as in the Penitentiary. The same privations,
CODE OF REFORM AND PRISON DISCIPLINE.
731.
punishments, and restraints, may be inflicted for idleness, or the breach
of any of the rules established by the inspectors or by this chapter.
Art. 326. The same accounts shall be kept with persons confined,
and the same allowance for excess of labour above the charges, shall be
made.
Art. 327. Whatever is directed for the reception of convicts in the
Penitentiary shall be observed when any one, committed to the House
of Industry, shall be received, except the prison uniform, which shall
not be given unless the clothing of the person convicted is not sufficient
for health or cleanliness.
Art. 328. The labour of the persons confined in the House of Industry
may be contracted for in the same manner as that of the convicts in the
Penitentiary; or when not contracted for, it is to be carried to the
account of the establishment; and the articles manufactured are to be
disposed of in the same way as is directed for the Penitentiary.
TITLE VII.
OF THE PECUNIARY CONCERNS OF THE HOUSE OF REFUGE AND INDUSTRY.
Art. 329. The accounts of the two departments, the House of Refuge
and the House of Industry, shall be kept in separate sets of books by
the clerk, under the inspection of the warden and the inspectors.
Art. 330. In the books of the House of Refuge all the expenses of
the paupers, sent by any parish or city, shall be charged to such parish
or city respectively, and they shall be credited with the amount of the
earnings of such paupers.
Art. 331. In the expenses, mentioned in the preceding article, shall
be included, not only the food, clothing, medicine, and other articles
provided for such paupers, but a just proportion of the salaries of the
warden and other officers and attendants of the House of Refuge and
Industry, calculated on the average of persons in the said house.
Art. 332. One-fourth part of the salaries of the inspectors, of the
chaplains, and physician, shall also, in such account, be considered as
chargeable to the House of Refuge and Industry, and a due proportion
of that fourth (divided as is above directed by the average number of
the persons in the said house) shall be also included in the expenses
charged to the parishes as aforesaid.
Art. 333. Whatever sum is found due on such account, if not paid
on demand by the city or parish from which it is due, shall be added
to the quota of the state taxes, payable by such city or parish, and be
collected and paid into the public treasury in like manner with the rest
of the state taxes.
Art. 334. All the expenses of the other persons admitted or confined
in the said house, shall be paid by the state, without any counter charge.
Art. 335. A detailed account of all the expenditures and receipts of
the said house shall be laid before the legislature, by the inspectors, on
the first day of every session.
Art. 336. The salary of the warden shall be
annum, and of the matron
dollars per
dollars, and each of the assistants
shall be paid
a day.
732
CODE OF REFORM AND PRISON DISCIPLINE.
GENERAL PROVISIONS.
Art. 337. If any one shall, for hire, reward, or emolument of any
kind whatever, or the promise of any, solicit the pardon of any one.
convicted of any offence, or procure any other to sign a petition for
such pardon, or to apply for the same, he shall be fined five hundred
dollars, and if he be a counsellor or attorney, he shall be suspended
from practising as such in any court in the state for one year.
Art. 338. The inspectors, chaplains, teachers, physicians, wardens,
matrons, assistants, and under-keepers, appointed by virtue of this Code,
shall, before they enter on the performance of their respective duties,
take an oath faithfully to perform the same.
A BOOK OF DEFINITIONS.
TITLE I.
GENERAL PROVISIONS.
Art. 1. These definitions are intended to show the sense in which the words
defined are employed in the system of Penal Law, not to denote or fix their general
signification in the language.
Art. 2. The words printed in small capitals in the body of this system, are
alphabetically arranged in this Book, with the definition annexed.
Art. 3. Generally the definitions that are incorporated in the other parts of the
work are not repeated in this Book; but this rule is departed from when the gene-
ral use of the term, in other parts of the System than that in which the definition is
contained, renders a reference to the explanation necessary.
Art. 4. Corollaries, illustrations, and developments, are used in several instances
to fix the attention more strongly to particular parts of the definition: but the
omission to employ them, in other cases, is not to be considered as giving any
latitude for the construction of any word in a definition beyond the plain import of
its meaning in connexion with the context.
TITLE II.
DEFINITIONS.
ACCIDENT, in this System, means an event happening without the concur
rence of the will of the person by whose agency it was caused. It differs from
MISTAKE, because the latter always supposes the operation of the human will in
producing the event, although that will is caused by erroneous impressions on the
mind.-See MISTAKE.
ACT-when applied to a written instrument, is a term used to show the con-
nexion between the instrument and the party who has given it validity by his sig-
nature or by his legal assent: when thus perfected, the instrument becomes the
ACT of the parties who have signed or assented to it in a form required by law.
ADVANTAGE, applied in different parts of the system to that which is to be
gained or lost, means whatever, in the estimation of mankind, causes pleasure by
its possession or enjoyment, or uneasiness by its loss or cessation.
AFFIDAVIT-a written declaration, sanctioned by the oath of the declarant
administered by a person or court duly authorized for that purpose. The adminis-
tration of the oath must be duly certified by the official SIGNATURE of the person,
or the clerk of the court, before whom it was taken; and the declaration must be
SIGNED by the declarant; or it must be certified by the person administering the
oath, that the declarant cannot sign.
736
;
BOOK OF DEFINITIONS.
AFFINITY—a connexion formed by marriage which places the husband in the
same degree of nominal propinquity to the relations of the wife as that in which
she herself stands towards them, and gives to the wife the same reciprocal con-
nexion with the relations of the husband. It is used in contradistinction to cON-
SANGUINITY, which is the relationship that exists between several persons who
derive their descent in the same or different degrees of propinquity from an ances-
tor common to all.
AFFIRMATION and OATH. An affirmation is a solemn declaration, made
before a person or court authorized to receive it, attesting the truth of a statement
already made or about to be made by the affirmant, or the truth or sincerity of a
promise made by him. An oath is a similar declaration, accompanied by a religious
invocation to the Supreme Being to bear witness to the truth of the declaration or
the sincerity of the promise, and by a renunciation of the blessing of God and the
respect of man if the engagement should be violated. Vide the Chapter of the
Code of Procedure, "Of Oaths and Affirmatiosn." The term "oath," whenever
used in this System, as to its effects and consequences and all penalties attending
its breach or falsity, includes affirmations, unless the contrary appears from the
context.
AMICABLE COMPOUNDER. An arbitrator with extensive equitable powers.
TO APPROPRIATE, in relation to property, is to possess, and to make such
use or disposition of it, as none but the owner, or some one legally authorized by
him, could do; and, with respect to rights, to do such acts in relation to them as
none but the person entitled to them, or his representatives, could lawfully do.
Appropriations are legal or fraudulent. No appropriations are fraudulent but
such as come within the definition of fraud in this book..
Corollaries.-I. If the property he destroyed but not possessed, or if the pos-
session be for the purpose of destruction, or be such a possession only, as is neces-
sary for effecting the destruction, it is not an appropriation.
II. If the property be taken possession of and transferred, although it be after-
wards destroyed, it is an appropriation.
ARBITRATOR—any one appointed by the parties in any litigated question,
either of law or fact, to decide it between them. In this system it is used to in-
clude REFEREES, UMPIRES, and AMICABLE COMPOUNDERS, whether they are named
by the court, in cases where they are authorized to do so, or by the parties.
ATTEMPT. An attempt to commit an offence, in this system, means an en-
deavour to accomplish it, which has failed from some other cause than the voluntary
relinquishment of the design.
BAILABLE OF RIGHT. Those offences, on a charge for which the magis-
trate must admit to bail, if good security be offered, are bailable of right. The
constitution provides, that bail must be taken for all offences, except those which
were punished capitally at the time of its adoption: these were murder, rape, ex-
citing insurrection among the slaves, and stabbing, or shooting, or poisoning with
intent to murder. All other offences, therefore, are bailable of right. The offences,
above enumerated, are also bailable, when the proof is not evident nor the presump-
tion great.
BREACH OF THE PEACE—any offence against public tranquillity, or against
person or property, when accompanied by violence.
BRIBE. The gift or promise which is accepted; of some ADVANTAGE, as the
inducement for an illegal act or omission; or of some illegal EMOLUMENT, as
a consideration, for preferring one person to another in the performance of a legal
act.
TO BRIBE to make such gift or promise which is received. If it be not
received, it is an OFFER TO BRIBE.
TO RECEIVE A BRIBE, is to accept the gift or promise, and either expressly
or impliedly consent to do the act, or be guilty of the omission required. Whatever
would be proof of consent in cases of contract, according to the rules of evidence,
would show an acceptance in this case.
Corollaries and Illustrations.-I. The gift or the promise required by the defini-
tion need not be direct: although the gift be clothed in the form of a sale for an
inadequate price, or of the payment of a debt; or the promise be made colourably
for some other consideration; or a wager, or any other device, be used to cover .
the true intent of the parties, it is a bribe.
II. The gift or the promise must be the inducement for the act or omission; it
must, therefore, precede or accompany such act or omission. If the act be first
performed, uninfluenced by any such promise, it is not bribery.
BOOK OF DEFINITIONS.
737
III. When the act or omission is illegal, the promise or gift of any ADVANTAGE,
as the consideration, is bribery. If a magistrate should discharge, without bail, a
person legally accused of a crime, on the promise of that person's influence with
the governor for an appointment, this would be bribery; because, although the in-
ducement, that is to say, the influence with the governor, is only an ADVANTAGE,
not an EMOLUMENT, yet the act, that is to say, the discharge without bail, being
illegal, it comes within the definition.
IV. But when the act is legal, but the impropriety consists in the undue prefer-
ence given to the person offering the inducement, that inducement, to constitute the
offence, must not only be an advantage, but an emolument. If an officer of justice
were to promise a magistrate to recommend his friend for an employment, as an
inducement for the magistrate to employ him in preference to any other in the
business of his office, this would not be bribery; although it would, if the inducement
had been a sum of money or any other emolument.
V. The emolument, when that is required to constitute the offence, must be
illegal, that is to say, either not allowed or more than is allowed by law. If two
persons should apply to a notary, each to have an act of sale drawn, and he should
give the preference to the one who paid him double fees, this would come within
the definition; but if he took no more than the tariff allows, the preference would
be no offence.
VI. No acts of bribery, or offer to bribe, are punishable as such, but those which
are designated by express law.
VII. Whenever by the Penal Code bribery, or an offer to bribe, is made pun-
ishable, in relation to officers of a particular description, or to persons exercising
certain duties, powers, or privileges, it is intended to extend to all official acts and
omissions of such officers, and to all acts or omissions of such other persons as re-
late to their duties, privileges, or powers; but not to include any other.
BUILDING-any thing erected by art and fixed upon or in the soil, composed of
different pieces, connected together, and designed for permanent use in the position
in which it is so fixed.
Corollaries.-I. A single piece of timber, although fixed in the ground, is not
a building.
II. A fence or enclosure is a building.
III.
A heap of stones, although some of them may be fixed on the earth, is not
a building.
IV. Every building comes under the description of real estate.
COLOUR. Doing an act under colour of an office, or other legal power, means
the doing it under the false pretence that it is authorized by the duties of such office,
or by the due exercise of such legal powers.
CONDITION of a Person-a situation in civil society which creates certain
relations between the individual, to whom it is applied, and one or more others,
from which mutual rights and obligations arise. Thus the situation arising from
marriage gives rise to the CONDITIONS of husband and wife; that from paternity
to the CONDITIONS of father and child.
COROLLARY, in this system, is used not so much to designate the just conse-
quence that, according to strict reasoning, ought to be drawn from any proposition,
as the consequence which is established by law as resulting from the definition or
proposition to which it refers. Those who are to execute or interpret the law,
therefore, are forbidden to modify or reject any such consequence under the pre-
tence that it is not a just deduction.
CORPORATION, is an incorporeal being, created, and capable of acting only
in the manner prescribed by law. It is composed of one or more persons having a
common name and uninterrupted succession. It may hold property, and for certain
purposes specified by law is considered as an individual.
Corollaries.—I. As a corporation, by this definition, is capable of acting only in
the manner prescribed by law, no act done in any other manner or form, can be the
act of the corporation. It cannot, therefore, commit an offence. All such acts,
although done under the colour of being corporate acts, are those of the individual
members who perform them, and they alone are criminally liable.
II. Acts which are offences against the property and rights of individuals, are
also offences when committed against the property of corporations, and such rights
as are vested in them by law.
III. Corporations are of two kinds : Public, also called Political Corporations,
and Private Corporations. PUBLIC CORPORATIONS are those to which are confided
4 S
738
BOOK OF DEFINITIONS.
certain police powers in a designated portion of the state. PRIVATE CORPORATIONS
are all such as are not public.
CORRUPTLY. This adverb is applied to the doing of acts with the intent of
gaining some ADVANTAGE inconsistent with official duty or the rights of others.
Corollaries.-I. Corruption includes bribery, but is more comprehensive. An
act may be corruptly done though the advantage to be derived from it be not offered
by another.
II. It is not corruption to do an official act from an expectation of ADVANTAGE,
if the act be not contrary to official duty, or does not injure the rights of another.
III. The corruption is not measured by the nature or amount of the
ADVANTAGE.
COUNTERFEIT-to make something false in the semblance of that which
is true. Whenever this word is used, in this system, it implies fraudulent intent.
COURT-COURT OF JUSTICE. These terms, in this system, are synony-
mous. A court is an incorporeal political being, which requires for its existence,
the presence of the judge and clerk at the time during which, and at the place
where, it is by law authorized to be held; and the performance of some public act,
indicative of the design to perform the functions of a court.
Corollaries.-I. There can be no court without a clerk or some one authorized
to perform the duties of a clerk.
II.
Executive officers are not essential to the existence of a court.
III. The judge is not the court.
IV. The court cannot exist before the time at which, by law, it is authorized to
hold its sessions; nor after the time to which its sitting is limited.
V. All acts done by the persons composing the court, importing to be acts
of the court, at any other place than that authorized by law, are not the acts of a
court.
VI. A justice of the peace, or any other magistrate authorized to perform judi-
cial duties, without a clerk to record his proceedings, does not constitute a court;
but courts may order certain executive acts to be performed at other times and
places, such as the issuing of writs and filing of papers.
CRIME, is an offence the punishment of which, in the whole or in part, may be
the forfeiture of any civil or political right, or hard labour, or for which hard labour
is an alternative, to be inflicted at the discretion of the court.
DAY, given as the period of a notice, prescribed as a necessary interval between
two acts or events, excludes the day of the notice and the day the act is to be per-
formed; or of the first and second act or event; so that the full number of days pre-
scribed shall intervene, unless there be a contrary provision in the law.
DAY, used as a period of time, means the period of twenty-four hours, beginning
at the expiration of the twelfth hour at night.
DAY, or DAY-TIME, used in contradistinction to night, means the period be-
ginning at half an hour before the rising of the sun, and ending half an hour after
its setting.
DEADLY WEAPON-any instrument which, when offensively used against the
person, will probably produce death.
DEMUR, is to admit the truth of a fact stated, but to deny the legal consequence
for the establishment of which it was alleged. The only case in which a formal
demurrer is admitted, in this system, is that of a demurrer to a challenge to the
panel of jurors.
DESIGNATED PERSON, is a term used to express one who is either known
by name, or by person, or station, or office, or dwelling-place, or in any other way
that may designate him to be the person referred to.
DISCRETION-the exercise of sound judgment, directed by what may be sup-
posed would have been the will of the legislature, applied to the case in which
the discretion is to be used, had the circumstances of that case been legislated
upon for a development of this definition-See the Code of Procedure, chapter
"Of the Judgment."
DISCUSSION of Property, means the using the means prescribed by law for
rendering it available to the payment of a debt.
DOMESTIC ANIMALS, means only animals of that kind that are usually
employed in hunting, or in husbandry, or which are raised for the purpose of food.
EMOLUMENT-any thing that forms an increase of property.
ESTATE, is used as synonymous with property. See PROPERTY.
EVIDENCE, is that which brings the mind to a just conviction of the truth or
falsehood of any substantive proposition which is asserted or denied.
BOOK OF DEFINITIONS.
739
Illustrations and Developments of the different Parts of this Definition.-
I. A conviction produced by evidence which ought not, according to the rules
of true reason, to have that effect, is not a just conviction: the law, therefore, de-
clares what effect different species of evidence ought to have in producing such
conviction; and that evidence, in its different degrees, is called LEGAL EVIDENCE.
II. Evidence being different according to the different degrees of effect which
it ought to produce; those degrees, therefore, receive different denominations, in-
dicative of the operation they each ought to have on the mind. These denomina-
tions are presumptive evidence, direct evidence, and conclusive evidence; all of
which are hereafter defined.
III. The word "substantive," in the definition, is intended to exclude all such
abstract propositions as can be demonstrated to be true or false by the reasoning
power, without having recourse to the establishment of other facts. The proposi-
tions intended by the definition are either of fact or of law. What is evidence of
law, will be shown in the Code of Evidence. The three kinds of evidence enume-
rated, apply only to propositions of fact.
EVIDENCE (presumptive). Presumptive evidence is that which, by directly
establishing the existence of one fact, renders the existence of another probable.
EVIDENCE (direct). Direct evidence is that which, if true, conclusively estab-
lishes or destroys the proposition in question.
EVIDENCE (conclusive). Conclusive evidence is that which, by law, is de-
clared to be such proof of that which it asserts, as cannot, while it exists, be con-
tradicted by other testimony.
EXCITE to offer any persuasion or inducement.
EXTORT, is to obtain some illegal EMOLUMENT or advantage from another,
under colour of, or as the consideration for, some official act.
FORCE-VIOLENCE. These terms mean the exertion of physical power, and
when unqualified by any thing in the context, the idea of the illegal exercise of such
powers is intended to be conveyed.
Corollaries.-I. No words, whatever may be their import, can constitute force
or violence.
II. Gestures, indicating an intent to apply physical power to the object intended
to be affected, when such object is within the reach of the exercise of such power,
does amount to force or violence.
III. The exercise of physical power amounts to force or violence, although it
may be insufficient to carry the intent into effect.
IV. Violence and force are, in some instances, considered as offences merely
by the intent with which they are used-as in assault, and assault and battery.
Sometimes they do not amount to the offence described, unless they are sufficient
to carry the intent into effect-as in the offence of violently obstructing the pro-
ceedings of a court of justice; in which case the offence is not complete, unless
the violence has produced the obstruction.
FRAUD-TO DEFRAUD-unlawfully, designedly, and knowingly, to appro-
priate the property of another.
Illustrations.-I. Every appropriation of the right of property of another, is not
fraud. It must be unlawful; that is to say, such an appropriation as is not permit-
ted by law. Property loaned may, during the time of the loan, be appropriated to
the use of the borrower. This is not fraud, because it is permitted by law.
II. The appropriation must be, not only unlawful, but it must be made with a
knowledge that the property belongs to another, and with the design to deprive him
of the same.
It is unlawful to take the property of another; but if it be done with
a design of preserving it for the owners, or if it be taken by mistake, it is not
done designedly or knowingly, and, therefore, does not come within the definition
of fraud.
III. Every species of unlawful appropriation, enters into this definition when
designedly made with a knowledge that the property is another's; therefore, such
an appropriation, intended either for the use of another or for the bencfit of the
offender himself, is comprehended by the term.
IV. Fraud, however immoral or illegal, is not, in itself, an offence. It only be-
comes such in the cases specially provided by law.
HABITUALLY—so frequently as to show a design of repeating the same act.
HOUSEHOLDER-one who occupies a house, or part of one, in which he ha-
bitually dwells.
Corollaries.-I. It is not necessary that the dwelling-place should either be
740
BOOK OF DEFINITIONS.
owned or hired; an occupant at sufferance, or in his own wrong, comes within the
definition.
II By employing the word "dwells," in the definition, it is intended to exclude
a sojourner or guest. The occupant must be provided for at his own table, not
board at that of another.
III. The dwelling must be so habitual as to show an intent of continuance.
The quality of householder cannot be assumed, merely for the purpose of using it,
in order to do some act for the performance of which that character is required by
law, with the intent of relinquishing it when the purpose is attained.
HOUSE-any edifice, which being so built as to come within the definition of
REAL PROPERTY, as defined, is closed in on all sides, and has the area, which is en-
closed by the sides, covered with a roof.
HOUSE (dwelling). A dwelling house is one in which some person habitually
sleeps or eats his meals; or one that is built and intended for that purpose; al-
though not actually inhabited.
INDUCEMENT-the object, whether of advantage to be obtained or evil to be
avoided, which brings the mind to determine on any act or omission.
INFANT—a minor, who has not yet attained the age which usually gives physi-
cal and mental power to avoid the ordinary dangers, or without aid to use the ordi-
nary means of sustaining life when they are provided for him.
-
INJURY, is used in its most enlarged signification, meaning whatever causes
evil or detriment, or renders the object of less value. When it is intended to be
used in the restricted sense of an evil or detriment, caused contrary to law, it is
called illegal injury, or some other qualifying epithet is annexed to show such
intent.
INSANITY-a malady operating on the perceptive or on the reasoning faculties
of the mind, which either prevents the person affected from receiving true impres-
sions through his senses, or from drawing just conclusions from what is truly per-.
ceived; and existing in such a degree as to render him incapable of performing the
usual duties or transacting the ordinary affairs of life.
JUDGE—a public officer, appointed to decide litigated questions. This term,
with exceptions that are specially made, is used to designate only such officers as
preside in courts, and who are designated by that title in their appointments.
Exceptions and Illustrations.-I. Jurors, although they are judges of fact—and
ARBITRATORS, although they are private judges, chosen by the parties, and in
some cases assigned by the court-are, in this system, not included in the term,
unless specially named.
II. When used in relation to a power to be exercised, or a duty to be performed,
in a court having more than one judge, the power or duty is given to or imposed on
all the judges, or so many as are necessary for the constitution of the court. When
the term judge is used in relation to a duty or power to be performed or exercised
out of court, it is intended to impose the duty or confer the power on any one judge
where there are several.
III. A justice of the peace is included in the term judge in the first two chapters
of the title of the Penal Code, "of Offences against the Judiciary Powers."
JUST REASON-to fear-to think-to believe-to doubt-such cause as would"
produce these effects by their operation on the apprehension or mind of a man of
ordinary understanding in the common occurrences of life. The definition does
not call for the exertion of very extraordinary courage, or an unusual degree of in-
tellect.
LAW, as used in this system. This word signifies all those rules established
by the people of the state in their constitution, or necessarily governing them as a
member of the Union, or adopted or made by the legislature in conformity with the
powers given by the constitution, and according to the forms it prescribes.
Corollaries, Developments, and Illustrations.-I. The laws in force in this
state are the following, each having a controlling force over the others in the order
in which they are enumerated:
1. The constitution of the United States, because it was adopted by the people
of the state as paramount to their own constitution.
2. The laws and treaties of the United States, made in conformity with the con-
stitution.
3. The law of nations, so far as the same has been recognised by the United
States.
4. The constitution of the state.
BOOK OF DEFINITIONS.
741
5. The state laws, passed in conformity with the powers granted by the constitu-
tion, and according to the forms prescribed by it.
6. The laws in force in this state, at the time its constitution was adopted, and
which have not been since repealed.
II. No other laws or authority for making laws are recognised as having any
force to bind the people of this state.
III. No act of the legislature of the United States is law which is not warranted
by some power given to them by the constitution of the United States, and which
is not made according to the forms it prescribes.
IV. No act of the legislature of this state is law which is not warranted by the
powers given to them by the constitution of the state, and is not made according
to the forms it prescribes, or which contravenes the constitution of the United
States, or laws, or treaties, constitutionally passed or made by the government of
the United States.
V. If any provision in the constitution of the State should be found to contravene
the constitution of the United States, or any constitutional laws or treaties made
under it—the latter must prevail.
VI. Rules, ordinances, and by-laws, made by any court, corporation, body politic,
or society, pursuant to powers legally vested in them by the legislature, have the
force of law to the extent of those powers, as respects the rights of persons, or pro-
perty, submitted to their operation.
LAW (penal). A penal law is one having for its immediate object the enforce-
ment of civil or political duties, and the preservation of correspondent rights. It
must command certain acts to be done or omitted, and must impose a PENALTY
to be enforced in the name of the state for a breach of its provisions.
Corollaries.-I. A law which forbids or commands, but without declaring any
penalty for disobedience, is not a penal law.
II. Laws authorizing courts to impose fines, or to imprison, for defaults occurring
in the administration of justice, or for disobedience to its rules for the maintenance
of order, or authorizing corporations or other collective bodies to impose fines on
their members, are not penal laws.
III. Ordinances or by-laws of PUBLIC OF PRIVATE CORPORATIONS, are not penal
laws, although they should impose penalties.
IV. Laws declaring contracts or acts, which want certain formalities, or which
are not conformable to the provisions of such laws, to be void, are not penal laws.
V. Laws which impose forfeitures, or pecuniary penalties to be sued for in their
own name, and for their own use, or for the joint benefit of the prosecutor and the
state, are not penal laws.
LAW (military). Military laws are regulations for the government of the mili-
tary force; and although they contain penalties, they are not considered as penal
laws, because their immediate object is not the enforcement of civil or political
duties.
LAWS (of Nations,) are those rules which, by the general consent of nations,
govern them in their intercourse with each other in their national capacity. Offences
against those laws, not being cognizable in the courts of this state, they are not de-
tailed in this system.
LAW (civil). Every law which does not come within the description of penal,
military, or national law, is, for the purpose of these Codes, called civ LAW.
LAWFUL. Nothing is lawful that contravenes any of the laws in force in this
All acts or omissions are lawful which are not forbidden by some written
law or by the laws of nations.
state.
LYING-IN-WAIT-waiting in or near a place where the property or person of
another is expected to come or be brought, for the purpose of committing an offence
which shall affect such person or property.
MAGISTRATE. This term means all judges, including justices of the peace.
MAGISTRATE (competent)-one whose legal official powers are sufficient for
the execution of the duty required.
MALICE—a malignant design to cause INJURY.
MANIFEST—whatever is apparent of itself, and is not made so by other evi-
dence or by induction.
Illustration. In the chapter of the Penal Code, concerning offences against de-
cency, there is a provision forbidding the exhibition of any work MANIFESTLY de-
signed to corrupt the morals of youth. If this term had not been introduced, the
design might be inferred from expressions or figures usually and innocently em-
742
BOOK OF DEFINITIONS.
ployed in works of art or science, but at which overstrained delicacy or puritanism
might take offence.
MAY-when employed to confer a power, is intended to render the exercise of
it discretionary.
MINOR-any person under the age of twenty-one years. All the rules and
provisions of penal law, with respect to minors, apply to them, although they may be
emancipated.
MISDEMEANOR-any OFFENCE less in degree than a crime.
MISTAKE—a belief in the being of that which does not exist, or in truth of a
conclusion that is false.
Mistakes are REAL or INTELLECTUAL. In this system MISTAKE, when not
qualified by the context, means exclusively a real mistake, as the same is here de-
fined.
Real mistakes relate to facts, and are caused either by the erroneous operation
of the senses, or when the impression on the senses having been true, other circuin-
stances produce a false conclusion in the mind.
INTELLECTUAL MISTAKES are such as are caused wholly by a defective operation
of the reasoning faculty, either by drawing false conclusions from true principles,
or by adopting false principles, and reasoning either correctly or falsely from them.
Illustrations and Corollaries.-I. If one, intending to shoot an animal in the
wood, should fire at a fur cap, and kill the man who wore it, thinking it to be the
animal he was hunting, this would be a REAL MISTAKE, produced by a false im-
pression on the organ of sight. If the same event should be produced by supposing
the rush and tread of the man through the bushes to be those of the animal, this
would be a mistake of the same description, arising from a false impression on an-
other sense, that of hearing.
II. One who shoots an innocent but unknown man, believing him to be a robber
equally unknown, of whose attempt he has been apprised, gives an example of mis-
take arising from other circumstances, without any error of the senses. There
was no error in perceiving the man; both men were equally unknown; therefore,
the error did not arise from the sight; but the information of the intended robbery,
and the entry by night at the time he was expected, were the circumstances from
which the erroneous conclusion was drawn, that the innocent man was the robber.
III. If one should establish in his own mind, the erroneous principle that no hu-
man law can rightfully control his revenge for an injury, and from thence deduce a
right to challenge and kill the man who has offended him, this is an intellectual
mistake, by drawing true conclusions from the establishment of false principles un-
connected with the fact.
IV. If a curator should believe that because he has a right to administer the real
property of his ward, he has also that of disposing of it at his pleasure, he commits
an intellectual mistake, by drawing a false conclusion from true principles.
V. In those cases in which the law declares that an act which would otherwise
be an offence is not punishable, or is punishable in a less degree when done by
mistake, it does not intend intellectual mistakes.
VI. All mistakes, as to the tenor or the construction of law, are intellectual mis-
takes.
VII. No mistake of law can excuse or palliate an offence.
MONTH, in this system-by the term month, a calendar month is always in-
tended.
TO OBSTRUCT, as applied to any proceeding or course of action-means not
only to stop altogether, and to interrupt for a time, but to render inconvenient,
or to turn out of the usual legal course.
OFFENCE, is the doing what a PENAL LAW forbids to be done, or omitting to
do what it commands. In most cases the contravention must be voluntary to con-
stitute the offence; but there are exceptions to this part of the definition to be
found in the description of different offences in the Penal Code.
Developments.-I. Penal law here is not used synonymously with penal statute.
If a penal statute should contain any prohibition not SANCTIONED by a penalty, the
breach of that part of the statute would not be an offence.
II. An act, or omission, in contravention of a penal law, is not an offence in any
one who does not come within the purview of the law.
OFFICE, is a delegation, either mediately, or immediately, from the state, of
powers to perform certain duties; either for carrying the operations of government
in some one of its branches, which is called a PUBLIC OFFICE, for performing some
duty in relation to some designated individuals, or their property, which is denomin-
ated a PRIVATE OFFICE, or for exercising certain functions unconnected with the
BOOK OF DEFINITIONS.
743
state government in a public or private corporation, which is designated as a CORPO-
In relation to the functions they require, offices are divided into
CIVIL and MILITARY; and civil offices are either LEGISLATIVE, JUDICIAL, or EXE-
RATE OFFICE.
CUTIVE.
OFFICER (civil). Any one who fills a legislative, executive, or judicial office
of the state. No one is an officer until he has received the evidence designated by
law of his election or appointment, and (where they are required by law) unless he
has taken the oath of office and given security for its faithful performance. But
any one performing the functions of an office without being thus qualified, is liable
to all the penalties imposed by law for any misconduct of which he may be guilty
in the exercise of such office.
OFFICER (military). One who fills an office in the army, or navy, or militia:
the last are considered as military officers only when doing military duty.
OFFICERS (legislative). The members of the general assembly are legislative
officers. The governor or person acting as such is an executive officer: but per-
forms legislative functions in exercising his right of sending back bills to the gene-
ral assembly for reconsideration.
OFFICERS (judicial). All those officers whose legal functions are the decision
of litigated questions either of law or of fact. Judges, or those who are exclusively
employed in the administration of justice, justices of the peace, clerks, and other
officers of courts are judicial officers.-ARBITRATORS and jurors are not officers.
OFFICERS (executive). Every PUBLIC OFFICER comes under this description,
whose duties are neither military, legislative, nor judicial.
ORDINARY CARE-ORDINARY ATTENTION. These terms signify that
degree of attention and care which a man of common prudence and activity em-
ploys in his daily occupations: they exclude that deliberation and solicitude which
is shown by men of extraordinary circumspection and diligence in common affairs,
or which concerns of more than ordinary interest excite in all.
PANEL, is the list formed, according to law, of the names of the grand or petit
jurors summoned to attend a court.
PERSONATE—to pretend to be another, either by assuming his name, his ad-
dition, designation of office, occupation or place of abode, with an intent to injure
or defraud.
POISON any substance which, by some inherent quality, causes death, when
applied to, or received in the human body.
POISONING-the act of adininistering poison. It is effected by any of the
means by which the poisonous substance may operate, whether by swallowing, by
respiration, by incision, or by any other mode of application.
Corollaries from the two last definitions.—I. 'Death caused by the deprivation
of respirable air, is not poisoning.
II. To suffocate by smoke or steam, or to kill by any of the gaseous fluids, which
cause death by stopping respiration, is not poisoning.
III. Death caused by the inhaling of any gaseous fluid, which by some deleterious
quality it possesses, causes death when brought into contact with the organs of
respiration, is poisoning.
IV. The deadly quality must be inherent in, not adventitious to, the substance.
Death occasioned by the administration of a substance, which disorders the func-
tions of the body, but does not usually produce death in the quantity in which it
was administered, is not poisoning; but may be murder, or a less offence, accord-
ing to the intent.
V. The deleterious effect may be supplied by the quantity. A substance, which
given in small quantities may have no deadly effect, may come under the descrip-
tion of poison, if administered in a quantity that usually causes death.
PROPERTY. This term conveys a compound idea composed of that which is
its subject, and of the right to be exercised over it. In relation to its object, pro-
perty is CORPOREAL OF INCORPOREAL; the other part of the definition, the right
connected with the object, is that of possessing, and using with respect to corpo-
real property, or of enforcing or transferring with respect to that which is incorpo-
real.
PROPERTY (corporeal). Is that property which is material in the physical
sense of the word, or which may be perceived by any of the corporeal senses.
PROPERTY (incorporeal). Means the right to enjoy either at the present, or
any future time, some species of corporeal property not in the possession of the
person having the right; and for this reason in common parlance, and frequently in
this system, it is called a RIGHT.
744
BOOK OF DEFINITIONS.
PROPERTY (real). Is land, and every thing naturally rooted or growing
therein, or artificially and permanently erected on, or affixed to the soil.
Corollaries, Illustrations, and Developments.—I. By land or soil is meant not
only ground capable of cultivation, but every other matter composing the globe,
while it forms a part thereof; therefore rocks and minerals, while they are yet in
the quarry or mine, enter into this definition, but cease to form a part of the land
when they are dug out or detached.
II. Trees and all other vegetable matters, while they are rooted in the soil,
whether produced by nature alone, or by nature aided by cultivation, and their fruits
while they are attached to them are real property: but the plants cease to be real
property when they are rooted out or cut down, as do the fruits after they are
separated from the plants which produced them.
III. Land covered with water, and the water standing in or upon or flowing over
the soil, is real property.
IV. Every thing that is constructed upon the land by art, which is not by its
construction calculated and intended for locomotion, and all things permanently
fixed to such erections as parts thereof, are real property. Therefore, a BUILDING
erected on a foundation of wood or stone, or on posts, is real property; but one
resting on wheels or slides, and intended to be moved from place to place, is not
real, but personal property, as are also all furniture, ornaments, or implements of
trade which are usually moved, although they may be fastened to the soil or the
building.
V. The rents of real property reserved to the proprietor, while they are unpaid,
whether such rent be reserved in money or other things, is real property.
PROPERTY (personal). Every species of property which is not real property,
comes under this description.
Corollaries.-I. Money, bank bills, and public securities, are personal property.
II. Credits, or the right of demanding or suing for money or other personal pro-
perty, and the evidence of such debts, are personal property, whether the same be
debts of a personal nature or secured on land.
III. Rents, or annuities charged on hand payable to any one but the proprietor of
the land, are personal property.
IV. The title deeds of real property, are personal property.
V. Shares in any banking, commercial, or manufacturing corporations or socie-
ties, and the certificates and other evidences of ownership thereof, are personal
property, although such society or corporation may own real estate.
PUBLIC PRISON-the building designated by law, or used by the sheriff, in
each parish, for the confinement of those whose persons are judicially ordered to be
kept in custody.
If the prison designated by law should be destroyed, or if none should be pro-
vided, the sheriff must find some place for the imprisonment of those who are com-
mitted to his custody; and this place is then a PUBLIC PRISON, although it may be
a private house.
PUBLIC PROSECUTOR-the attorney-general, the district attorneys in their
respective districts, any person legally performing the duties of either of these
officers, and any other officer who may be hereafter appointed by law to prosecute
offenders on the part of the state.
PUBLIC RECORD—a written memorial made by a public officer authorized
by law to perform that function, and intended to serve as evidence of something
written, said, or done.
Corollaries.-I. Every statement in writing, made by a public officer, is not a
public record. It must be one which that officer is specially authorized by law to.
make and record.
II. It must be memorial; by which is meant a written statement, intended to
preserve the remembrance of what it contains.
III. It must also be intended to serve as legal evidence, the force of which is
provided for in the Code of Evidence.
PUBLISHING, as applied to libels and violations of epistolary correspondence,
means the mechanical operation of engraving, copying, painting, printing, or writ-
ing, from the dictation or reading of another; and CIRCULATING is the selling,
giving, distributing, reading, or exhibiting it to others.
TỔ RECEIVE-voluntarily to take from another what is voluntarily offered.
RECOGNIZANCE, is an engagement in writing to pay a penalty therein ex-
pressed, if the person making the engagement, or some other designated person,
BOOK OF DEFINITIONS.
745
shall not do a specified act required by law, or shall not abstain from doing other
specified acts.
REPUTATION (general)-estimation for those qualities, the possession of
which is essential to happiness in society, not those which render one more agree-
able in it.
RIGHT, is in one sense synonymous with INCORPOREAL PROPERTY. In the
other and more enlarged sense, it signifies every ADVANTAGE that man ought to
enjoy according to the laws of nature, which are called NATURAL RIGHTS; or,
according to law, which are called LEGAL RIGHTS.
RIGHTS (political). Political rights form one of the divisions of legal rights.
They are those which are given by the constitution or by law of electing, or being
elected, or appointed, to fill any PUBLIC OFFICE, or to perform any functions in
any branch of the government.
RIGHTS (civil). Civil rights are those which every free person is authorized,
by law, to exercise for the preservation either of his own person, property, or repu-
tation; or of the persons, property, or reputation, of certain designated individuals,
by virtue of some authority conferred by law, given by consent, or vested in him by
the powers annexed to some PRIVATE or CORPORATE OFFICE.
SCHOOL-MASTER, is a person employed for the education of youth, of either
sex, in the arts or sciences.
Corollary and additional Provision.-I. This definition includes private
teachers of any art or science, and professors and tutors in universities, colleges,
and academies, as well as in schools.
II. The right of restraint and correction given by the Code to school-masters,
may be modified by agreement with their employers.
ŠECURITIES FOR MONEY, mean the written evidence of the existence of a
debt.
SIGNATURE, when used in relation to an instrument in writing, means a name,
a firm, or a mark, affixed thereto, in order to give it validity as the act of the party
whose name, firm, or mark, is so affixed. The name of a witness, subscribed to an
instrument, is also a signature; but it is always, when mentioned in this system, dis-
tinguishable by the context from the signature of the party.
TO SIGN, means to affix a signature.
THREAT. When this word occurs without any qualifying expression to show
the nature of the evil that is threatened, it means a menace of great and illegal
injury to person, property, or reputation.
VERBAL PROCESS, is a written account of any proceeding or operation re-
quired by law, signed by the person commissioned to perform the duty, and attested
by the signature of witnesses.
TO UTTER, as applied to a false or forged instrument, means not only the
declaring it, in words, to be true, but the saying or doing with, or in relation to it,
any thing that shows a design, to cause another to believe that the instrument is
true.
WARRANT, is the written order of a magistrate, attested by his signature,
authorizing the person or officer to whom it is directed to perform certain duties of
executive justice therein specified.
WORDS FOLLOWING. This expression, used in relation to the recital of
an instrument in writing, includes all numerical figures, or other written signs, or
marks, contained in the instrument to which they relate.
WRIT, is a like order, issued by a court, under its seal.
WRITING. Whenever the contrary does not appear from the context, this
word means, not only words traced with a pen, or stamped, but printed, or engraved,
or made legible by any other device.
YEAR. The year intended in this system is the calendar year.
THE END,
4 T
UNIVERSITY OF MICHIGAN
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BOUND
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-23 1949
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