authority of law. Connected with this, is the provision which prohibits the punishment of any act not expressly forbidden by the letter of the law, under the pretence that it comes within its spirit.

By the criminal laws which now govern us, most offences are described in the technical words of the English jurisprudence, and we are referred to it for their explanation; hence our judges have deemed themselves bound to adopt those definitions which have been given by the English courts, and the whole train of constructive offences has been brought into our law. The institution of the trial by jury, the rare infliction of torture; and in latter times, the law of habeas corpus, gave a decided superiority to the penal law of England over that of its neighbours. The nation, unfortunately, mistook this superiority for perfection; and while they proudly looked down on the rest of Europe, and reproached them with their tortures, their inquisitions, and secret tribunals, they shut their eyes to the imperfections of their own code. Prisoners were denied the assistance of counsel; men were executed because they could not read; those who refused to answer, were condemned to die under the most cruel torture. Executions for some crimes were attended with butchery that would disgust a savage. The life and honour of the accused were made to depend on the uncertain issue of a judicial combat. A wretched sophistry introduced the doctrine of corrupted blood. Heretics and witches were committed to the flames. No proportion was preserved between crimes and punishments. The cutting of a twig, and the assassination of a parent; breaking a fishpond, and poisoning a whole family or murdering them in their sleep, all incurred the same penalties; and two hundred different actions, many not deserving the name of offences, were punishable by death. This dreadful list was increased by the legislation of the judges, who declared acts which were not criminal under the letter of the law, to be punishable by virtue of its spirit. The statute gave the text, and the tribunals wrote the commentary in letters of blood; and extended its penalties

by the creation of constructive offences. The vague, and sometimes unintelligible language, employed in the penal statutes; and the discordant opinions of elementary writers, gave a colour of necessity to this assumption of power; and the English nation have submitted to the legislation of its courts, and seen their fellow subjects hanged for constructive felonies; quartered for constructive treasons; and roasted alive for constructive heresies, with a patience that would be astonishing, even if their written laws had sanctioned the butchery. The first constructive extension of a penal statute beyond its letter, is an ex post facto law, as regards the offence to which it is applied; and is an illegal assumption of legislative power, so far as it establishes a rule for future decisions. In our republic, where the different departments of government are constitutionally forbidden to interfere with each other's functions, the exercise of this power would be particularly dangerous; it was therefore thought proper to forbid it by an express prohibition. Some actions, injurious to society, may, by this means, be permitted for a time, but it was deemed infinitely better to submit to this temporary inconvenience, than to allow the exercise of a power so much at war with the principles of our government. It may be proper to observe, that the fear of these consequences is not ideal, and that the decisions of all tribunals, under the common law, justify the belief, that without some legislative restraint, our courts would not be more scrupulous than those of other countries, in sanctioning this dangerous abuse. In another part of the code, it is intended to insert a provision, to bring before the legislature, at stated periods, all those cases in which the operation of the law is supposed to fall short of, or to extend beyond, the intention of those who framed it; the defects, if really such, will then be cured by the power legally authorized to apply the remedy; the harmony of our constitutional distribution of powers will be undisturbed ; and the ends of public justice attained with greater regularity and better effect.

Our constitution, containing a very imperfect declaration of rights, leaves the legislative power entirely uncontrolled in some points, where restraint has, in most free governments, been deemed essential; a majority may establish their religion as that of the state; nonconformity may be punished as heresy; and even the toleration of other creeds may be refused; without violating any express constitutional law. Corruption of blood may be established, and it is even somewhat doubtful, whether, strictly speaking, it does not, under the general terms in which the rules of the common law are adopted, now exist. No legislative act can apply an effectual remedy to these and other constitutional defects; but their existence has called for a longer enunciation of general principles in the code, than would otherwise have been necessary. Our successors will not be bound to observe them, but we shall evince our own conviction of their truth; and by impressing them on the minds of our constituents, render any attempt to undermine or destroy them, more difficult and more odious. Acknowledged truths in politics and jurisprudence, can never be too often repeated. When the true principles of legislation are impressed on the minds of the people; when they see the reasons of the laws by which they are governed, they will obey them with cheerfulness, if just, and know how to change them, if oppressive. The reporter, therefore, has thought it an essential part of his duty to fortify the precepts of the projected code, by assigning the reasons on which they are founded; thus to open the arcana of penal legislation, and to show that the mystery in which it has hitherto been involved, was not inherent in the subject, but must disappear, whenever its true principles are developed.

Among the general provisions, is also found one, asserting the right to publish, without restraint, the account of all proceedings in criminal courts, and freely to discuss the conduct of judges, and other officers employed in administering justice. That this may be done more effectually, it is provided that the judge shall, at

the request either of the accused or of the prosecutor, state and record his decisions, with the reasons on which they are founded. In a subsequent part of the work, it will be made the duty of a particular officer to publish accurate accounts of all trials, remarkable either for the atrocity of the offence, or the importance of the principles decided in the course of the proceeding. Publicity is an object of such importance in free governments, that it not only ought to be permitted, but must be secured by a species of compulsion. The people must be forced to know what their servants are doing, or they will, like other masters, submit to imposition, rather than take the trouble of inquiring into the state of their affairs. No nation ever yet found any inconvenience from too close an inspection into the conduct of its officers; but many have been brought to ruin, and reduced to slavery, by suffering gradual imposition and abuses, which were imperceptible, only because the means of publicity had not been secured. In modern times, the press is so powerful an engine to effect this, that the nation which neglects to employ it, in promulgating the operations of every department in government, can neither know nor deserve the blessings of freedom. The important task of spreading this kind of information, ought not, therefore, be left to the chance of private exertion; it must be made a public duty; every one employed in the administration of justice will then act under the conviction, that his official conduct and opinions will be discussed before a tribunal in which he neither presides nor officiates. The effects of such a conviction may be easily imagined, and we may fairly conclude, that in proportion to its strength, will be the fidelity and diligence of those upon whom it operates.

By our constitution the right of a trial by jury is secured to the accused, but it is not exclusively established. This, however, may be done by law, and there are so many strong reasons in its favour, that it has been thought proper to insert in the code, a precise declaration, that in all criminal prosecutions, the trial by jury is

a privilege which cannot be renounced. Were it left entirely at the option of the accused, a desire to propitiate the favour of the judge, ignorance of his true interest, or the confusion incident to his situation, might induce him to waive the advantage of a trial by his country, and thus, by degrees, accustom the people to a spectacle they ought never to behold; a single man determining the fact, applying the law, and disposing at his will, of the life, liberty, and reputation of a citizen.

In proposing this change in our law, I may be permitted to make a few reflections, to show its importance. The trial by jury formed no part of the jurisprudence of the different powers which governed Louisiana prior to its last cession. It was first introduced when the province became incorporated with the United States, as one of its territories. By the first act for effecting this union, the trial by jury was established in capital cases; and in all others, both civil and criminal, was left, as in all cases it is now, optional with the parties. In the second grade of government, it was provided, that the people should have the benefit of the trial by jury, but it was not declared the only mode of trial; and our state constitution has adopted it in original cases, nearly in the same words. This indifference in our constitutional compacts, to an institution of such vital importance, has had the most injurious consequences, which have been increased by subsequent provisions. In civil cases, it is already banished from our courts, or used 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