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 passion 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 certainty that the law will be executed. Were you to rely on public convictions 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 provisions I have detailed. The same false sentiment of honour which leads to a breach of the laws in committing this offence, renders its punishment 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 dishonourable 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 ferocity 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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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 profession 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 imperfectly in some instances, and totally deny it in others.

The substitution of one infant for another, at such a tender age as renders the exchange and the deceit practicable in the absence of the parent; the production of a pretended child for the purpose of intercepting an inheritance, 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 contracting 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 difficulty; 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 inaccuracy, by restricting the exception to the innocent party, the nineteenth 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

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 corporeal, 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 property, or by removing it from the possession of the owner, and appropriating it. On this distinction is founded the division of these offences, into malicious injuries to property, and fraudulent appropriations 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 buildings 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.

mentioned

A second chapter provides for a case analogous to those in the one that precedes it. This is the invasion of property by housebreaking; 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 confounded with theft, or considered as not coming within the scope of

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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.

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. The 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 publication thereof, are severally declared to be offences, and are made punishable 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 circumstances 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 practical 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 committed by a nocturnal effraction, and is complete by the intent of en

(a) Hale's P. C., p. 509.

tering, in which it more resembles the offence which has hereinbefore been described as house-breaking. Stealing by an entry, without effraction, 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 resistance by threats. There is an error of the press in placing in this section the two last articles, respecting wrecked property. They properly 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, principally from the consideration that it is one which cannot well be committed, to any extent, without a dexterity acquired only by long practice 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 property of another from his person, or in his presence, with his knowledge 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 accomplice."

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 seem necessary for that treated of in the concluding section, namely, receiving 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 letters, 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 annex 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 enumerated 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,