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INTRODUCTORY REPORT

TO THE

CODE OF CRIMES AND PUNISHMENTS.

AFTER noticing and accounting for some variations in the arrangement 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 appropriate another to the definition of the technical terms used in the body of the work. It was, however, soon discovered, that, by this arrangement, 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 addition 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.

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for the understanding of any new course of reasoning, or the application of any new facts, that may be introduced.

At our entrance on the subject we are met by the difficulty of discovering 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 produced, it is highly gratifying to observe, that the principles which you have sanctioned have been confirmed by the best opinions, and supported 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 expected, 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 punishments; others, that reformation is the only lawful object. Some refer 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 abstract 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 reform; whatever be the true doctrine on either of these subjects, we have the satisfaction to know, that by a singular felicity, if either theory 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 supposable 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 preservation 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

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, implicitly, 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 deducible 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 attention 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, mistaken 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 legislature are expected with the greatest interest; and the final abolition of a punishment, repugnant to our natures, is expected from you with confidence, 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 assembly 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 abolition 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 acquainted 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 Leopold. 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 punishment. 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, discouraging 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 distinction more honourable than any that wealth or power or advancement in any other science could give-and I need not observe to the enlightened 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 question, that induces ine to press it again on the consideration of the legislature, 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 necessity of inflicting it in order to attain that object, could both be sufficiently shown; but my argument denied the existence of such necessity. On reviewing that part of the report, I think it requires some elucidation.

Existence was the first gift of Omnipotence to man. Existence, accompanied not only by the instinct necessary to preserve it, and to perpetuate the species, but with a social (not merely a gregarious) disposition, which led so early to the formation of societies, that unless we carry our imagination back to the first created being, it is scarcely possible 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 individuals 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 continue 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 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 existence, and are, moreover, under the reciprocal duty to defend it when attacked, it follows, that if one or the other is threatened with destruction, 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 destruction.

In order to judge whether there is any necessity for calling this abstract 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 render 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 possibility 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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