benevolence, in the mode of punishing criminals, nor has punithment ever before produced fuch falutary effects. Compare the ftate of this prifon, with the prifons of every kingdom in Europe, an ! it will reflect the highest honor, on the compaffion and generofity of the authors of this goodly work, and confirm the hope, that in America, not only the form of government, but the administration. of justice, will receive its laft and greatest improvement. We read with admiration, the heroic atchievements of an Alexander, a Cæfar, and a Frederic: but how much dearer to the heart of fenfibilty, is the character of the benevolent philofopher, who makes it the great object of his ambition, to introduce humanity within the walls of a prifon; who attempts to correct and amend offenders, by foftening the pains of punishment: who inftead of exterminating, aims to render them ufeful members of the community. The fatisfaction of doing good, furnishes the richest reward to a generous mind; but from the univerfal tribute of praite, rendered to the memory of the celebrated Howard, it is probable that the period is not remote, when great exertions in the cause of philanthropy and humanity, will acquire a more diftinguithed and lafting fame, than the most splendid enterprifes of heroes and warriors.

In this state, before Montefquieu, and Beccaria, had immortalized their names in pleading the caufe of humanity, the legiflature had begun to practice upon the fublime principles, which thefe philofophers have recommended by all the charms of eloquence and power of reafon. Our ancestors when they enacted their criminal code, were far from being difpofed to adopt the fanguinary fyftem of their native country. They exploded the idea of inflicting death, upon crimes of a very different nature. For a few of the most enormous crimes, the punishment was death, and for the reft, corporal pains, and pecuniary penalties were inflicted, according to the nature of the offence. But it was difcovered that there were certain crimes to which the wicked and the indolent were tempted by fo ftrong a defire to obtain property without labor or industry, that they could not be reftrained by ordinary corporal and pecuniary punishments. Unwilling to introduce fanguinary punish. ments, the legillature adopted the principle of punithing a certain clubs of crimes, by contement to hard 14bom and coufe fare. For this

this purpofe, New-Gate prifon was erected. The convicts are immured during the night in the dreary manfions of a profound cavern, to heighten the horror of the punishment, and to guard against the poffibility of an escape. By day in an upper apartment, chained for their fafe-keeping, they are compelled to perform fuch hard labour, as is moft fuitable for them.

The legiflature have aimed to proportion the punishment, to the nature of the offence, and for that purpose have introduced three diftinct grades of punishment,-Death: Confinement to hard labor, and coarse fare: Corporal and pecuniary pains and penalties. The crimes for which death is the punishment, are treafon, murder, rape, the crime against nature, mayhem, and arfon, where fome life is endangered. Imprifonment in New-Gate is inflicted on robbery, burglary, forgery, counterfeiting, horfe-ftealing, arfon, attempting to commit a rape, perjury, and aiding to escape from New-Gate prifon. On all other crimes corporal and pecuniary punishments are inflicted.

The legislature have unquestionably adopted the three effential grades of punishment, but it is a ferious queftion, whether in every inftance, the punishment is proportioned to the crime. The dreadful punifiment of death, ought only to be inflicted on thofe crimes which directly and immediately tend to the destruction of fociety and the human race, as treason, and murder. Thofe ought to be prevented by the most effectual meafures; and if death be inflicted on no other crimes, there is no probability that it will be fo common as to be difarmed of its terrors. It will imprefs a certain awe and dread on the mind, that will in the most effectual manner poffible, guard against the commiffion of thofe crimes; but if they are punished only in the fame manner, as crimes of an inferior degree, it will lead mankind to confound them together, and efface thofe peculiar fentiments of horror from the mind, which ought to be enforced.

But the other crimes punishable with death, by our law are certainly inferior to treafon and murder, and of courfe may be prevented by a punishment lefs fevere. Confinement to hard labor may be fo varied in degree, as well as length of time, that it may be

proportioned

proportioned to a vast variety of different crimes in fuch manner as to prevent their commiffion. Here is room for important improvement. This is the mode by which crimes are most effectually to be reftrained.

This fubject deserves the most attentive consideration of the jurist and the philofopher.. I fhall only remark, that the dreadful punishment of death ought only to be inflicted on treason and murder : that confinement to hard labour ought to be inflicted on those crimes, to which there is a ftrong temptation, which indicate great moral depravity, which are infamous, and are highly injurious to fociety; that this ought to be varied according to the aggravations of the offence: and that for all inferior crimes, corporal pains and pecuniary penalties may be proportioned in fuch a manner as to fubferve the interest of society: that corporal punishment is proper for those crimes which are infamous and bad in their own nature; and pecuniary penalties are adapted to actions which are deemed crimes in a political point of view, and bad because they are prohibited.

CHAPTER SECOND.

OF TREASON.

IN purfuing this branch of our enquiries, I fhall begin with the

higheft, and defcend to the loweft crimes, defining each in the concifest manner, and afcertaining the punishment.

In almost all codes of criminal law, treafon is a crime that comprehends a great variety of actions, and requires a long differtation to explain it. But in this country, as we have no royal families, whofe dignity is to be defended, and whofe affronts are to be avenged, a short statute fully defines the crime and declares the punishment. It is only the majefty of the people, and the existence of the government, that are capable of being affected by this crime. The lives of the rulers are fufficiently guarded and protected by the fame laws which protect every member of the community.

The

The statute enacts, that all perfons belonging to, or refiding within this ftate, and under protection of its laws, who fhall levy war against the state or government, or aid any enemies at open war against this State or the United States, by joining their armies, or inlifting, or procuring others to inlift for that purpose, or by furnishing arms, ammunition, provifion, or any other articles for their aid or comfort, or by carrying on a correfpondence with them, or fhall form or be concerned in any combination, plot, or confpiracy, for the betraying this State or the United States, into the hands or power of the enemy, or fhall give or attempt to give any intelligence to any enemy for that purpose, fhall on conviction, fuffer death. That all perfons who fhall endeavour to join the enemies of this or the United States, or use their influence to perfuade any perfon to join, aid, or comfort them in any manner, or fhall have knowledge of any perfon's endeavouring to do the fame, and fhall conceal it, fhall be punished by fine, according to the nature of the offence, and be imprifoned at the discretion of the fuperior court, not exceeding ten years. That no perfon accused of this crime, and on examination before proper authority, fhall be adjudged to be held to trial, fhall have bail, unless before the court having final jurifdiction.

Since the paffing this ftatute, the government of the United States has been established and a ftatute enacted, defining and punishing treafon, which will fuperfede the neceflity of the law of this state.

UNDER

CHAPTER THIRD.

OF HOMICIDE.

NDER this head, I fhall treat of the crimes of murder and manflaughter. Their connexion is fuch as requires them to be confidered together.

The Statute refpecting murder eñacts, b" that if any perfor "fhall commit any wilful murder, upon malice, hatred or cruel"ty, not in a man's just and neceffary defence, nor by casualty against his will, or fall flay or kill another through guile, or

by

a Statutes. 251

Statutes, 162.

"by poisoning, or other fuch atrocious practices, he fhall be put 46 to death." < The cominon law definition of murder is " when

a perfon of found memory and difcretion, unlawfully killeth any " reasonable creature in being, and in the public peace, with ma<lice aforethought, either express or implied." It is evident that the statute is made in affirmance of the common law. It is ftrange that the revisers of our statutes did not adopt the perfpicuous and accurate language of the common law, in defcribing this offence.

The age and capacity of perfons to commit this as well as other crimes will be confidered hereafter. The perfon killed, to confti. tute murder must be actually in exiftence. To kill a child in its mother's womb, is not murder, but a great misdemeanor, but if the child be born alive, and then die by reafon of the injury it fuffered in the womb, it will be murder in him who caused it. Every person who is in the state, is in the public peace, and of courfe protected in his life, excepting alien enemies at open war, and who enter the state with an armed force. In the repulfion of fuch invaders it is justifiable to kill them. But if an alien enemy comes into this state in a peaceable manner, without force, tho in the character of a spy, no períon has a right to kill him, but may apprehend him for trial.

. There must be an actual killing: an affault with an intent to kill is a misdemeanour, but not murder. The modes of murder may be as various, as the poffible means of taking away life, as by poifoning, ftriking, ftarving, drowning, or by an indirect act, of which the probable confequence may be, and actually is death. flf a man fet a dog upon another, and the dog kills him, it is murder. If a man turns loose a beast, which he knows is used to do michief, purposely, and he kills any perfon, it is murder. So where a fon carried his fick father against his will, in a cold frofty feafon from town to town, by reafon whereof he died, it was held to be murder. If a man lay poifon to kill one, and another is killed by it, this is murder. g According to the common law, a perfon muft die within a year and a day after the stroke was given, or caufe of death was administered, to constitute the crime of murder, and that in the computation the whole day in which the fact

was

3 ft. 47. 4 Black. Com. 195. d 3 Inft. 50. 1 Hawk. P. C. 80. 4 Black. Com. 198. e Ibid. 195. f4 Black Com. 196, 197. I Hawk. P. C. 78, 79. g Hawk P. C. 79. H. P. C. 55.