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 impression of the utility of this great writ, has rendered me particularly desirous 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 remain 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 bequeathed 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 endeavours 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 notice 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 proceedings were thought beneath the dignity of the magistrate, and inconsistent 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 function, that purity of intention, that ardent worship of truth, so inconsistent 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 legislative, or even in the executive branches; but if it once find admittance to the sanctuary of justice, we may be assured, that the vitals of

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our political constitution are affected, and I can imagine no better means of facilitating this corruption, than permitting your judges to make political 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) imperfectly, 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 experience 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 inevitable 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 honourable exceptions, his most virulent prosecutors. The true principles of criminal jurisprudence require that they should be neither. Perfect 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 integrity above suspicion, to learning and talent; such a judge is what, according to the true 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 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 argument, 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 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 members of the jury may differ.

I pass over other alterations of less importance, and proceed to the consideration of the fifth book.

This, as we have seen in the plan, is devoted to the rules of evidence as applicable to criminal law. In the execution of this part of the work, general principles will be first laid down, applicable to all cases of criminal inquiry, from its incipient to its final stage; they will be such only as have received the sanction of the learned and the wise, or such as can be supported by the clearest demonstration of their utility and truth. The evidence necessary to justify commitments, indictments, and convictions for each offence specified in the third book, as well as that which may be admitted in the defence, will be detailed under separate heads, and such an arrangement will be studied as to make this part of the work easily comprehended, and remembered without difficulty.

It is obvious, from the nature of this division of the subject, that illustrations of the rules it contains cannot be given without greatly exceeding the limits of an ordinary report. It may be proper, however, under this head, to notice that an attempt is made to enforce the sanction and add to the solemnity of oaths. From the careless and often unintelligible manner in which they are administered, it seems an idle ceremony rather than a sacred promise, accompanied by a renunciation of the blessings of the deity in case it should be broken. Rules are framed on this subject, which it is supposed may, in some measure, correct the evil, and make witnesses more cautious and circumspect in their testimony, by impressing upon the mind a proper sense of the serious consequences of its violation. If this impression should be insufficient to prevent deliberate perjury, it will at least restrain the more prevalent evil of those aberrations from truth which are caused by exaggeration, carelessness or passion.

The sixth and last division of the work, is to contain rules for the establishment and government of the public prisons; comprehending those intended for detention previous to trial; for simple confinement, and for correctional imprisonment at hard labour, or in solitude.

Upon these rules, and the proper execution of them, depend the success of the whole system. But it will be useless to make rules, because impossible to execute them, unless the edifice to be prepared for this purpose be on a scale sufficiently extensive to permit the proper classification, the separate employment and proper seclusion of the different offenders. Without these, we can neither produce reformation nor hope for any effect from example. And yet, because it produces neither, we find fault with the system, when we should arraign only our want of attention to its principle. Vice is more infectious than disease; many maladies of the body are not communicated even by contact, but there is no vice that affects the mind, which is not imparted by constant association; and it would be more reasonable to put a man in a pest-house, to cure him of a 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 essential to the success of the whole plan, it was deemed improper to leave it to the discretion of the governors or warden; but by means of precise and somewhat minute regulations, to place the discipline of the prison on a basis that should not vary according to the different theories of those who are to enforce it, taking care, however, to allow a reasonable discretion in cases where considerations of humanity require it.

In order to frame these regulations to advantage, it would be very advisable to obtain more information than we now possess, of the practical operation of those which have been tried in the other states.

For this purpose I intend, if possible, to devote a few months of the summer to a personal examination of the different institutions of the kind in the Atlantic states; but if my circumstances should not permit me to execute this plan, I shall renew the efforts I have already made to procure the information which the different returns and reports can give.

Every system having reformation for its principal, or even incidental object, is imperfect, if it do not contain a regular and permanent provision for giving education to the young offenders, and moral and religious instruction to all.

Lessons of this nature, inculcated by men of piety and benevolence; enforced by a life of temperance and labour, and not counteracted by any evil associations, I firmly believe, will make many a discharged convict a more worthy member of society than some who have never committed any offence of sufficient magnitude to incur the same discipline. But reformation is not enough; although sincere, it will not be lasting, if the distrust of society shall drive the repentant sinner from its 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 without reproach.

This part of the plan will be difficult of execution, but it is not deemed impracticable, and it will be facilitated and enforced by increased severity for a repetition of offences, as well in the duration of punishment as in the increase of privations while it lasts. Should the regulations which I suggest for this purpose be adopted, and be found efficient, it will complete the system which substitutes amendatory to vindictive punishments. A reformation in penal jurisprudence which reflects higher honour on modern times, than the greatest discoveries they have produced in arts, literature, or science.

This is the plan of the work, and these are the principles on which it is founded; if after examining them, it should be perceived that they are 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 forwardness, I have selected the second book, and the last chapter of the fourth, as specimens of the execution*. The one being chiefly an enunciation of general principles, and the other necessarily confined to matters of practical detail, the general assembly can the better judge, whether a proper attention to sound theory has been combined with efficient practical details; and whether the great object I have had in

* This report was made before the completion of the "System of Penal Law," the publication of which now renders the insertion of these specimens unnecessary.

view, of rendering every rule intelligible, although concise, has, in a reasonable degree, been attained.

Some parts of the third book are prepared, but the whole of this division is still in an unfinished state. The fourth is nearly complete. The fifth cannot, without great inconvenience, be put into form until the crimes to which the evidence is to apply are defined and definitively classed; this book must, therefore, necessarily be unfinished until the completion of the third; and the want of that information, which I hope to obtain by a personal inspection of the prisons, has unavoidably delayed 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 session. 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 manner 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 retain 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 popular 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 making 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, restraining, punishing and reforming the wicked; arraying the best feelings 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 directing its irresistible force against vices and crimes; rendering your