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 confided to a separate body of magistracy, viz., those which are legislative 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 exercised, then excused, and in the end insisted on as 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 competent 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 according to the Spanish law; by what process of reasoning will any court come to the conclusion that they have the right to adopt the common 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 (a) Ant. Gom. Var. Res. 3d vol. c. 12, No. 15. (b) Ib. No. 20. case the common law of England would not be applied to them without a legislative act. The selection of that law for the offences enumerated 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 enumerated, 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 renovation? 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 participated in the anxiety and dismay that pervaded the whole community 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 introduce 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 attempt 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 depositaries 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 effect, 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 introduced 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 promote 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. 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 evidence. 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 established: 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 legislature, 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 implication. 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 execute 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 convention) 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 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? Fourfifths of the offences enumerated in the statutes are punishable by imprisonment 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 pronounce 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 incongruous mass of written and unwritten law the very name of a system; 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 conclusions 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 enactments, 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 repeated 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 commission 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 punishable when produced by passion arising from adequate cause; or meriting the highest penalty when coming under the denomination of 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 esteem, 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. The first act (4th May 1805) declares, that if any person shall commit 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. At the time this law passed, four-fifths of the population could understand no English; 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 version of the law. There they find that the one is "homicide premeditée," 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 difficulties. 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 homicide. 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 interpret it for me? If I should apply to a lawyer for the book that contained 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 |