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, certainly 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 criminal court, as our laws have already made it in civil jurisdiction.

Those who advocate the present disposition of our law, say-admitting 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 rendering 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 degrade 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 perhaps 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 functions; 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 justice where to strike. Such a state can never sink into slavery, or easily

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 citizens 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 enjoy its advantages, but, that if this, with the principle of free representation in government, and that admirable contrivance for securing personal liberty, the writ of habeas corpus, should chance to be corrupted or abolished in the country from whence we derived them, we may return the obligation we have received, by offering for adoption,

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 twentyone; 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 sometimes 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. 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 people still conscious of their right to enjoy them.

A re

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 assertions. 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 genius, as he is admired for the purity of his principles, and his attachment 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 immediately disappear, and are lost in the crowd of their fellow-citizens."*

The other provisions of this book either require no particular elucidation, or will receive it when the work is presented for adoption.

*Duponceau's address at the opening of the law academy at Philadelphia.

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 simple, 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 companions of his infancy, should expel nature from their hearts, and humanity from their feelings; that they should barbarously discover his retreat, or with inhuman apathy, abandon him to his fate. The husband 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 adopting, 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. . . . Neither 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

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 frequently executed; but that they may never be enforced, they should be expunged from every code which they disgrace. The project presented 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 friendship cannot be distinguished by law: they must be left for the consideration 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 possible 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 provisions, 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,