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the manner in which the coal occurred, the minerals shining and sometime splendent. It is easily broken, with which it was associated, and the direction of the and its specific gravity varies from 1.3 to 1.45. It burns layers. The first indication perceived, is a dark black- easily, with a whitish flame, yielding a black smoke, and ish clay, with occasionally small fragments of bituminous a feeble but not unpleasant bituminous odour. The proshale, somewhat resembling coal; by penetrating a short ducts of combustion are chiefly carbonic acid and distance we find a stratum of shale strongly impregnated water, and a small quantity of sulphurous acid. with bitumen, and continuing the excavation for about-The remainder, which is never less than three per cent. six feet we come to a bed of coal, which is generally, but frequently much greater, is generally composed of not more than a few inches in thickness when first dis- scoria mixed with ashes. It yields by distillation, amcovered, but becomes two or three, and even four feet monia, carburetted hydrogen and an empyreumatic oil. thick, by penetrating to the distance of twenty-feet; and This coal is essentially constituted of carbon and bituin some cases the stratum of clay and minerals, which men, the proportions of which are variable: carbon is alternates with the coal, terminates, and the layers of the predominating ingredient, and frequently constitutes coal unite, forming a single bed. The strata of coal nearly three-fourths of the whole. Small portions of and the alternating strata of minerals seem to be of the earth and oxyde of iron are discovered by chemical wedge like form, the smaller end of the former and the analysis. larger end of the latter, being on the exterior surface of the mountain; this renders it demonstrable that the strata of minerals continually decreasing must soon terminate, the strata of coal continually increasing must soon unite forming the mass of the mountain. This supposition is strengthened by the fact, that wherever evcavations are made, coal is invariably found, and that indications of it are seen on the very summit, at an elevation of 200 feet above the lowest beds. On the north side of the mountain sulphuret of iron (pyrites,) occurs in the strata of coal, in regular layers, and when thrown together in heaps, exposed to the action of the atmosphere; is converted into copperas, large quantities of which might be manufactured annually at little or no expense. The argillaceous oxide of iron is found disseminated through it, in what the miners call kidneys, a name which they have applied to those small regular masses, on account of their peculiar shape.

On the south side, the sulphuret is not found, neither are the kidneys as abundant as on the north side. The magnetic oxide of iron occurs in large thick beds which alternate with the coal; a single mass of this ore which had rolled down into the ravine, would probably have weighed half a ton. Iron ore is found in this place in almost inexhaustible quantities, and consist of the magnetic red, brown and argillaceous oxides, with the most of their varieties, such as yellow, red and brown ochre, nodular and granular oxides; the waters are strongly chalybeate. I have examined ores of iron from the most parts of the United States, where it is found, and from several parts of Europe, and I have no hesitation in pronouncing those of Canal Port equal, if not superior to any of them.

It is not in the eastern range alone, that the coal is found; but it occurs in inexhaustible quantities on the western side of the river, where it is also accompanied by an abundance of iron ore.

This coal appears to be of the first, or independent formation of Werner, and is associated with the following minerals, to wit: Micaceous and ferruginous sand stone composed of quartz, with mica and feldspar; the ore of iron above enumerated: shale or argillaceous slate, which is micaceous, and bituminous; pudding stone, composed of rolled pebbles, cemented by a ferruginous sand or clay.

Strata of shale are, in a great number of cases, contiguous to the upper and lower surfaces of these beds of coal, constituting the roof and floor of the bed. That which covers the bed is bituminous; while that which is below, has imbibed little or no bitumen. Any of the rocks, however, of this formation, may form the roof or floor of a bed of coal.

This variety of coal is important for those purposes of the forge which require a hollow fire, as it possesses, in an eminent degree the property of agglutinating, and thus forms over a kind of arch which concentrates the heat. But this property of agglutinating, which it owes to the bitumen which it contains, injures it very much for many operations in the arts and in metallurgy. In these cases it must be deprived of its bitumen and sul- phur by converting it into coke.

Coal has been used in baking stone ware; and coke is frequently employed in baking hard porcelain. When it contains a large quantity of pyrites, it is rendered more or less unfit for use on account of the sulphurous acid generated by the combustion. Sometimes the heat liberated by the decomposition of pyrites is sufficient to set fire to the coal mines, which frequently continue to burn a number of years, constituting pseudo volcanoes and producing important changes in the superincumbent strata.

The county of Tioga, Pa. appears to be very rich in a mine: alogical point of view, but has never yet been properly explored. A metal called Bismuth has lately been found in the vicinity of the coal beds, but the exact location of it has been concealed for interested motives, by the discoverer. From the specimens which I examined and all the circumstances of the case, there can be no doubt that the discovery has actually been made; and when the situation is rendered public it will become very valuable as an article of commerce. It is the native metal, and only requires refining, which operation is simple and easy, consisting in dissolving it in nitric acid, decomposing the nitrate by water, edulcorating he oxide, and reducing it to a metallic state by heating in a covered crucible with black flux. It is said to occur in an extensive bed at least two feet thick. Bismuth, in its metallic state is employed in the composition of pevter, soft solder, printers' type, &c. and is added to lead to increase its hardness.

Its oxide renders glass more fusible, and if added in large quantities gives it a yellowish tinge. The subnitrate is used in medicine with success as an antispasmodic, &c.

Nearly all the bismuth of commerce is imported from Saxony, aud has rarely if ever been found before in the United States.

A gentleman from the city of New York, who is travelling through the western part of Pennsylvania, furnished me with several valuable specimens of minerals, from Pine creek, (near the coal bed, and, (an ore of lead) which were represented as occurring in vast abundance. Ores of gold and silver have also been discovered there, but not in sufficient quantities to render them a valuable consideration.

Newton, Oct. 25, 1827.

GEORGE W. HUGHES.

The above coal has been analysed by Dr. Meade,

The coal at Canal Point is principally of the variety called slaty; but passes, by insensible changes into the other varieties. Its colour is either pure black or with a slight tinge of brown or grey. It frequently presents an irized or pavonine tarnish. Its structure is foliated or who found in 100 parts: slaty; and its layers usually divide into rhomboidal prisms. It is sometimes composed of distinct lamular concirtions. Its cross fracture is even or slightly conchoidal, and frequently uneven: its lustre is resinous, more or less

Carbon

66.07

Bitumen

30.43

Earthy matter

3.50

100.00

THE

REGISTER OF PENNSYLVANIA.

DEVOTED TO THE PRESERVATION OF EVERY KIND OF USEFUL INFORMATION RESPECTING THE STATE.

VOL. I.

EDITED BY SAMUEL HAZARD, NO. 51, FILBERT STREET.

PHILADELPHIA, MARCH 8, 1828.

REPORT ON THE CRIMINAL CODE.

The Commissioners for the Revision of the Penal Code acting under the authority of the legislative resolutions of the 23d of March 1826, submit the result of their labours to the supervision of the legislature.

In discharging their important functions they have deemed it necessary to an entire performance of their duties to report the draft of three distinct bills under the following titles.

No. 1. An act to amend, revise and consolidate the Penal laws of this commonwealth.

No. 2. An act regulating criminal procedure. No. 3. An act for the government and regulation of the penitentiaries of this commonwealth.

For a detail of the opinions entertained by the commissioners in relation to the principles of penitentiary punishments, and the most obvious methods of preventing crimes; the commissioners refer the legislature to the report prefixed to bill No. 3.

It is contemplated by the commissioners, should their suggestions be assented to by the legislature, that the act designated as No. 1, in this report shall supercede the existing statutes of this commonwealth, and shall supply the defects, which experience has suggested, as existing in the present enactments against crimes. No attempt has been made to codify the criminal law. This was not done, because, in the first place, it did not seem to be contemplated by the spirit of the resolutions already referred to; and in the next place, it was deemed inexpedient, and within any brief period of time wholly impracticable. Its inexpediency arises from the fact, that there is a clearness, precision, and uniformity, in the common-law principles and adjudications relative to crimes; and this whether in reference to the descriptions of offences, or the modes of proof and rules of evidence, that no other part of that vast and boundless system can boast of. These principles, are found to adapt themselves so accurately to the various modifications of society, and require so little acuteness in their application, that it may well be doubted whether a code equally eligible in its general bearings upon the community, could be devised by any individual skill, however aided by experience. The commissioners have adopted the existing wise and humane legislative provisions, which have done away the obnoxious features of the commonlaw, and feel authorised, from the investigation they have given the subject, to say that the judicious amendments which experience may suggest to the legislature, will create an approximation to perfection, gradual it is true, but more certain than can reasonably be anticipated from any attempt at entire codification. The situation of the penitentiaries belonging to this commonwealth, the necessity of some immediate revision of the existing code, so impatiently called for by the public; and the limit which the legislature appear inclined to give, to the time for making the report on the penal code, form insurmountable obstacles to the entire codification of the criminal laws, were there even no doubt, as to the field of inquiry opened, by the legislative resolutions under which the commissioners were appointed. Rejecting then for the reasons mentioned, the idea of an entire codification of the penal law, the commissioners devoted themselves assiduously to the revision of the existing

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penal laws and to an inquiry as to what alterations and changes in the prevailing system, it would be proper for them to suggest. It will be found on an examination of the bills designated Nos. 1 and 2, that wherever an old act has been retained or amended or modified; or whereever an old act has been repealed, and a new one substituted, the volume and page of the laws in which the old act is to be found, is constantly referred to. It would perhaps have conduced more readily to the understanding of the contemplated amendments, alterations, and innovations, could the old acts have been arranged, in parallel columns with the new; but the labour of such arrangement, and the necessity that it would have created of copying frequently the same act, independently of the expense attending it, precluded the possibility of so obvious and useful a mode of indicating the proposed changes. A very little attention, to the references as found in the margin of the report, will it is presumed enable the observer to understand the old law, the mischief and the remedy proposed. It will be seen by an examination of the code recommended, and comparing it with the existing statutes, that the commissioners conceived their duty of revision could only be performed, by collecting together the enactments against crimes; collecting such as were similar in their tendency, and reconciling such as were contradictory, suggesting repeals of such statutes as were deemed obsolete or inexpedient, expunging such parts of acts as seemed unnecessary, incongruous or inconsistent with brevity; and reducing facilitate the labours of the legislator, the research of the the whole mass under such appropriate heads, as would lawyer, or the inquiries of the citizen. A report, stating in reference to all the existing acts, the reasons that have operated on the minds of the commissioners, for specific alterations; would have imposed a task upon those, on whom devolves the necessity of revising our labours, neither agreeable nor useful. It is believed that in every case where reasons for the alterations are not assigned, they will readily suggest themselves, on inspecting and comparing the new and old provisions, to the wisdom of the legislature. In a few instances it will be found, that radical alterations in the existing code, are recommended. They are such, however, as will appear obvious upon suggestion, and to have been long called for by the state of public feeling. They lop off relics of barbarism, which would long since have been expunged from our statute book had the laws undergone a general revision. We remark upon two of the modifications at large, rather for the purposes of explaining the general principles which pervade the alterations recommended, than with a view of elucidating the subject in reference to the amendments, to which our observations are directed.

The act of 1794 for the prevention of crimes, &c. abolished the punishment of death in cases of treason, without defining the crime, or repealing certain statutes that have become obsolete from a change of circumstances, and ought no longer to disfigure the statute book. The act of the 11th of February 1777, has reference to such treason and misprisons of treason as could only be committed during revolutionary contest; the repeal of that act appears to be required by the plainest dictates of propriety. The act of the 3d of December 1782, to prevent the erection of any new and indepen

petrated in the attempt to commit burglary, the highest grade of that offence would seem to recommend the adoption of the proposed alteration. It will be perceiv ed by the legislature, that in the proposed enactments, the phraseology of the old acts is in most instances alone altered, some are rendered more explicit, and a brevity is introduced into all, not by any means to the extent the commissioners could have wished, but so as in a measure, to dispense with the verbiage, now the subject of general complaint, from those whose duties render an examination of our statutes necessary.

dent state within this commonwealth, has long ceased to have any possible practical operation, from the change of those circumstances, under which it was originally called for. It has been long doubted, whether any contingency can arise, so long as our present form of government, and the union of the states continues, in which treason against the commonwealth can be committed; and there are not wanting intelligent individuals who doubt the propriety of any statutory enactments against the crime. The enactment by which it is proposed to supercede the existing statutes, defining the offence of treason, is a modified transcript of the United In some instances, it has been deemed advisable, to States' law against the same crime. It will not be thought modify the punishmeut directed to be inflicted by the inconsistent with that spirit of humanity, and veneration existing laws. The general principles of such contemfor the natural ties of society, which so eminently cha-plated modification, will be found fully detailed, in the racterize the institutions of Pennsylvania, that we have report prefixed to the act, for the regulation and governrecommended such a modification of the doctrines of al- ment of penitentiaries. It is but justice to say, that any legiance, as shall preclude the inflictions of the penal-errors which may be detected in our existing penal code, ties of misprison of treason, on the husband or wife concealing each their knowledge of the other's offence against the government

in reference to the quantum or species of punishments, are errors on the side of humanity. In some instances, the punishment allotted to offences, appear hardly commensurate with the specified crimes; and this, whether we consider these punishments with practical men, as a means of prevention, or consider penitentiaries with some modern theorists, as mere schools of reform.

The commissioners have ventured to recommend an extension of the term of imprisonment, in such cases as their own experience, and that of others has convinced them, are not now adequately punished.

Whatever advantages, may have been anticipated from a revision, and consolidation of the penal code, it cannot be doubted, that the duties of the commissioners would not have been faithfully performed, had they omitted to recommend the adoption of such additional enactments, as the spirit, feelings and manners of the age, seem to have rendered necessary for the protection of society, against the constant warfare waged against it, by evil disposed individuals.

An alteration nominal rather than substantial, is recommended in the acts relative to the concealment of the death of illegitimate children, by the mother. An inspection of the statutes upon this subject, will tend to show the greater humanity which the criminal code of Pennsylvania exhibits over the codes of her sister states, and as well as those of modern European nations. The 8th section of the act of 1718 for the advancement of justice, subjected the concealment of the death of a bastard child, to the penalty of death. This provision was copied from the English statute, 21st James, 1st cap. 27th. The rigorous nature of this act, suggested to the humanity of the English courts a construction, far apart from either its letter or spirit, since it was required that before conviction should take place in case of conceal ment, probable presumptive evidence should be given, that the child whose death was alleged to have been concealed, had been born alive. This merciful interpre- The range, inquiry and investigation, which necestation was adopted in our statutes of the 15th of Febru-sarily devolved upon the commissioners, in furnishing ary 1786, and the 10th of March 1790, modifying the criminal law, and by the act of the 22d of April 1794, for abolishing the punishment of death in certain cases, &c. it is provided, that the concealment of the death of a bastard child shall not be conclusive evidence to con- It is evident that with the mutations which have taken vict the mother of murder, unless the circumstances at-place in society, originating from prosperity in commertending it shall be such as shall satisfy the minds of the jury, that she did wilfully and maliciously destroy and take away the life of the child.

themselves with the materials necessary for forming a mature and deliberate opinion, as to what statutory additions should be recommended, formed not the least burdensome part of their labour.

cial and manufacturing enterprise, and an accumulating population, there have arisen contingencies and exigencies, which the common law, broad as it is in its princiIt seems to be doubtful whether as the law now stands ples, is not calculated to meet. Principles of human any conviction could take place, for a felonious conceal-action affecting society at large, have of late years been ment of the death of a bastard child by the mother, un- developed, which seem to have been excluded in the less such evidence was adduced as would be necessary early distinctions, between public and private wrongs, to convict her of murder. The question it is not pro- from criminal cognizance; and acts have been committed, bable could readily occur, so as to become the subject which our ancestors perhaps did not conceive within the matter of judicial decision; but it would be a harsh dis- range of human probability. Frauds and villanies, theretinction, which would involve the penalty of death, for fore, unknown to the common law, or punished by it in an offence in a female, from the mere additional fact of a manner not suited to repress the prevailing mischief, concealment, when an offence in a 10ale convict attend- seem to require the aid of statutory provisions. ed with the same circumstances, would be subjected to In inquiring into the nature of these offences, the first imprisonment alone. It is questionable whether those information was to be derived from our own professionlaws as they now stand, have any other effect than to al experience. In order to avail ourselves in addition to lengthen unnecessarily the forms of indictments, with- this, of the experience of others, we addressed letters out any corresponding advantage to the public. The to various judicial and professional gentlemen in our own propriety, therefore, of repealing them altogether, and state, from some of whom valuable hints have been resubstituting a modified enactment against the conceal-ceived, and acted on; to gentlemen of experience in ment, is submitted to the legislature. Such repeal would leave the destruction of the life of a bastard child by its mother, subject to the same punishment, and susceptible of the same proofs as ordinary cases of murder.

other states we have likewise been indebted for important information. Another source of knowledge open to all, were legislative reports upon the subjects of the criminal law; and the reports of individuals upon the It may perhaps be proper to turn the legislative atten- subjects connected with our duty made at the request of tion, specially to an alteration, in the acts distinguishing the legislature. Amongst the latter, we cannot forbear between the different degrees of murder; by which it to notice the report of the late Jared Ingersoll, Esq. laid is proposed, to make murder perpetrated in the comis- before the legislature on the 21st of January, 1813, consion of larceny, in the night time, murder in the 1st de-taining an entire revision and amendment of the existing gree. Reasons equally as strong as those which have penal code. This well digested and able report, evinces operated upon the legislature, to constitute murder per- the integrity, talents, humanity and professional skill, of

1828-]

REPORT ON THE CRIMINAL CODE.

the gentleman from whom it originated; and whatever may have been the circumstances of the times, which prevented its being acted upon, must stand a durable monument of his knowledge, in the science of criminal jurisprudence. To the lights already referred to we sought to add a knowledge of the criminal codes of our sister states, and found access to those store houses of intelligence, the British parliamentary reports upon the subject of criminal law, and the modern British enactments declaratory of and punishing crimes. With all these sources before us, it is easy to see how truly laborious must have been the investigation, how comparatively small the result. Whether we have made a good use of the materials presented for our selection is for a higher wisdom than ours to decide.

It may however be observed, that the most of the proposed enactments, which in the margin of the bill are termed new, are rightly so termed, only with reference to Pennsylvania jurisprudence. The experience of Europe, and the legislation of our sister republics and it may be added practical evidence amongst ourselves, forcibly recommend those enactments to legislative consideration: Criminal legislation, for a great and free people, is a work of extreme delicacy and responsibility, and hence a wise foresight should make us hesitate in the adoption of measures, which have not received the sanction of experiment. The proposed new enactments, will not be found obnoxious to this objection, as they in so many instances barely apply the experience of other countries, to cases of daily occurrence in our own. Among the features of the proposed bill there is none which will probably be more the subject of discussion, than the principle almost uniformly pursued, of fixing the maximum of punishments; leaving the minimum to the discretion of the courts. At first view it may strike the legislature, that too great a latitude is given the judiciary, and an authority imparted which may be abused. If human wisdom, could by positive enactments, provide a graduated scale of punishment, by which the just proportion of penal infliction could be adapted to each infraction of penal law, a great good would undoubtedly be accomplished for society. The precise consequences of crime under all given circumstances being distinctly marked out, could neither be enhanced or diminished as the mind of the Judge was either imbrued with severity or softened by compassion. But such a perfect scale of punishment can never be provided by human wisdom; hence arises the necessity either of fixing a precise amount of punishment to every class of crime, to be imposed on every guilty individual, without regard to attending circumstances; or designating the greatest extent of punishment to be inflicted for a given crime leaving any intermediate amount less than the whole to be applied by the power that put, the law into execution. In some of the states the former course is pursued, and the judge is called upon, under circumstances that almost extenuate the offence, to inflict the highest grade of punishment. The evils that attend this system are obvious. Jurors are continually found contrasting the extent of punishment with the comparative atrocity of the crime; and verdicts are thus rendered in opposition to the evidence from a feeling that the law itself is unjust. When jurors reason from other and juster principles, and the law is strictly carried into execution, reason and humanity continually invoke the pardoning power, and the law looses its terrors, because its threats are rarely carried into perfect execution. That punishments should, while they are mild, be certain, is a fundamental truth in criminal jurisprudence of inestimable value; and no principle should be introduced into a criminal code calculated to impair it. That of fixing a designated punishment, which is always made up with a view to cases of great atrocity, to every grade of the same crime, is in our view calculated to produce this result: That this opinion has always prevailed in Pennsylvania, is manifest from every part of our statute book. In no instance are we aware of a punishment short of

147

death which is to be applied to all cases of the same crime. There are indeed instances, in which while not more than a certain punishment is directed to be inflicted, judicial discretion is limited from reducing it beneath a certain quantum. In most instances this principle has been stricken from the bill reported, experience having manifested to us, that in a multitude of cases, the designated minimum of punishment, is beyond what the principles of equal justice, applied in each case as it arrives, would consider the maximum. While we do not profess to think, that judicial discretion should be at liberty to inflict a particle of punishment, beyond what the law giving power defines, as the highest sanction, we respectfully suggest, that the merciful prerogative of graduating punishments, according to the nature of the crime and the intrinsic wickedness of the offender, ought not in a mild and philosophic code to be at all limited. It is impossible for any legislature so to regulate a minimum as always to be just; for such are the endless varieties of accidents and circumstances, to which hinmanity is subjected, that the theories of the closet, never in this particular, have been found fully adequate to meet the actual business of life. The legislature will also observe, that the cases, in which the greatest ju dicial discretion is proposed to be given, in the administration of punishment, are those in which statutory punishments are for the first time recommended for common law offences. In point of fact these enactments rather limit than extend the judicial power. At this time, as respects this class of crimes, there is no limit to the common law punishments but the discretion of the judges. Fine and imprisonment the general common law sanctions, have now no other boundary. The only plausible exception to this latitude of discretion, arises from the apprehension that from favouritism or hostility in particular instances, it might be abused. To this it is answered, that public opinion and judicial responsibility form powerful checks to such abuses and such as have been for near half a century, during which time, the largest judicial discretion in the application of criminal punishments has been exercised without complaint. But even if such a state of things is possible, is it not better to hazard such a result, rather than in guarding against it by affixing precise and specific punishments, to rush into the opposite extreme and cause certain injustice to be done in many instances, in order to prevent possible injustice in some. Such a course would neither be indicative of sound philosophy or judicious legislation, and it is presumed never will be pursued in this commonwealth.

Throughout the whole code with here and there an exception a singular or plural term, or the male or female gender, are indifferently used, and the relatives may sometimes appear not to have an appropriate application to their respective antecedents. We have pur sued this course with a view to avoid useless repetitions. Any apparent objection arising from it, will be found fully obviated on a reference to the general sections that conclude this code.

The acts against vice and immorality did not appear, to the commissioners, to be submitted to their revision by the resolution of the 23d of March, 1826. They have, therefore, been omitted in the code now submitted to legislative consideration. It might perhaps answer a useful purpose, to re-publish them as an appendix to the amended code, as thereby the whole of the laws imposing fines and penalties, as well as those inflicting punishments for indictable offences, would be embodied in one act, and become more easy of access to the people. There are certain provisions against gaming recommended by the commissioners, which at first blush, might seem to be modifications of a part of the enactments against vice and immorality. A deliberate examination of the acts recommended, will convince the legislature, that the general provisions of the original act of 1794, are not infringed upon, but that the first section of the act of the 18th of March, 1816, entitled a

sioners have proposed a plain, but they believe a strong remedy; one they believe calculated to effect the object without taking from the accused any proper privilege. It leaves him at the outset of his trial to determine whe

"A supplement to the act for the prevention of vice and immorality" is modified and extended, and an authority given to enforce the remedy which forms an important innovation on the usual modes of proceeding. The lottery acts have been introduced with consider-ther he will question the relevancy of this accusation, or able amendments. The act of the 2d of March, 1805, to prevent excessive and deceitful gaming in lotteries, has not been introduced into the code, from an impression, that so long as the present mode of drawing lotteries prevails, it will remain a dead letter; its repeal however is not recommended, as a recurrence to the old modes of managing lotteries, would again render the enactment proper.

These enactments that are intended to protect the incorporated institutions of our own commonwealth, against the rivalry of foreign capitalists, did not seem proper to be introduced into the criminal code. They are matters of economical regulation, which like our inspection and auction laws, are compensated in their breach, by pecuniary penalties, and ought not properly to have a place in the catalogue of crimes. Nor did it seem advisable to burden the code with laws of mere local operation. Such as the health laws and others that relate to Philadelphia.

The course of criminal procedure being necessarily more artificial than the code of crimes and punishments, the reasons which prevented explanatory details of the particular provisions of the latter, do not entirely apply to the enactments regulating the former. Hence we have deemed it proper to recur to some of the important additions suggested in the system, for the purpose of drawing towards them more directly legislative consi deration. Adue regard to brevity has confined us to such only as seem to deserve this character; which will be succinctly and briefly considered.

Jurisdiction of Criminal Courts.

The only alteration of the existing system, in this particular, is that which imparts jurisdiction to the inferior criminal courts, in some matters at present exclusively cognizable in courts of oyer and terminer. The absolute necessity of holding a court of oyer and terminer, in all instances, in which any person has been charged with an offence capital at common law, is burdensome and expensive to the counties, and of little real value to the accused; the judges in all instances (except in the cities of Philadelphia, Lancaster and Pittsburg,) being the same in all the criminal courts, and the jurors similarly selected- The distant periods at which courts of oyer and terminer are held, in some of the counties, are oppressive to the prisoners, who are frequently kept an unreasonable length of time in confinement, waiting for a trial, which necessarily results in their acquittal. The plan proposed, does not deprive the accused of any rights at present secured to him by law, but gives him an election, either to take his trial at the mayor's court or sessions of the proper city or county, or in the regular oyer and terminer. In practice, it will be found less expensive to the public, and as advantageous to the accused as the present system.

Indictments.

The object of the commissioners, in suggesting the broad provision of the proposed bill, with respect to indictments, was to rescue the penal laws of Pennsylvania from the imputation so justly attached to the common law, of maintaining an unreasonable nicety in criminal proceedings. Our records abound in instances of the escape of guilty men from the just consequences of their crimes by the strictness required in indictments, which as the great and good Hale remarks, "was grown to be a blemish and an inconvenience in the law, and the administration thereof; that more offenders escaped by the easy ear given to exceptions to indictments, than by the manifestations of their innocence; and that the grossest crimes had gone unpunished by reasons of these unseemly niceties. To meet this evil the commis

take issue upon the merits of the charge. If he elects the latter, and is condemned, there seems neither moral or legal fitness in permitting him to urge formal exceptions, which if suggested at an early period would have been promptly corrected.

Competency of Witnesses.

In this particular, a fundamental alteration in the general law of evidence has been suggested, but one which is calculated to promote the discovery of truth and advance the purposes of justice. While the decisions of courts in civil cases, have been continually nar rowing the rules which exclude witnesses from being heard, the old principle, which closes the lips of a party convict of an infamous offence, has been left untouched and unimproved. The test which produces a result so important as well to society as the individual is so vague and uncertain that it requires some exercise of ingenuity to ascertain what constitutes an infamous offence, in the legal acceptation of the term. But if the adminis tration of this rule was free from difficulty, its principle is not sound. The testimony of a witness, in a criminal accusation, is the right of the community not of the witness. It is the public peace that has been disturbed, the public order that has been infracted; and the means through which the offender is to be brought to justice is peculiarly the property of the public. To say that because a man has once committed a crime his lips are forever to be sealed in a criminal court is in effect punishing the public whom he has wronged, and not the individual. If we suffer ourselves to reason independent of the restraints of precedent it cannot but appear a strange anomaly, that when the commonwealth is asking for justice against one who has violated her laws she shall be told that because the individual who is cognizant of the guilty deed has himself once injured her he shall not therefore be heard in her behalf. So little is the individual interest of a criminal affected, by taking away his competency as a witness that it is not probable that this denunciation ever intimidated any man from crime. Such a consequence is too remote and indirect ever to enter into the calculations of a criminal. The practical effect of the rule, is to give immunity to subtle knaves, who eagerly employ instruments who, they know, can never betray them, because a supposed legal policy has guaranteed their silence. In the metropolis of the state, this evil is frequently felt, as it must be in large communities where criminal associations and arrangements, are as well organized as the most honest and meritorious. The pardoning power, it may be supposed would reach this evil. But experience demonstrates this remedy not to be practically effective. It frequently happens, sometimes from the ignorance of a convict of a conviction, sometimes from the natural reluctance he has, of communicating more of his infamy than arises from the particular transaction, and the hope that the fact of his previous conviction may have escaped notice, that this discovery is for the first time made when the exception is taken to his testimony on the trial. The result frequently is, the triumph of villainy and the defeat of justice. Abolishing the rule will still leave the credibility of such a witness open to observation, before the jury, whose peculiar duty it is to weigh testimony and pronounce upon the degree of regard which ought to be paid to it.

A considerable portion, and we believe not the least valuable of the proposed bill, contemplates remedying the defects in proof, which continually arise in the administration of justice, where the locality of the crime is doubtful, or the parties injured very numerous. barrassing difficulties frequently occur, where a crime is committed on or near the lines of contiguous counties, or

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