Imprisonment for debt has been entirely abolished in many of the United States; in some others, it has been virtually, though not formally abolished; in several of them (Connecticut, New Jersey, Pennsylvania, and Maryland), the law still remains unmitigated. That the law, as it formerly existed in all the States, required and imperatively demanded great changes and ameliorations, can admit of no question; but how far it can be changed, so that, doing no harm, it shall retain all the good which it has been accustomed to produce, may admit of just doubt.

The ground may be very safely taken, that no man, in a free country, ought to be imprisoned for a debt of a smaller amount than, say, twenty-five dollars exclusive of costs; that all women, from respect to their sex, and all men beyond the age of sixty years, ought to be free from imprisonment for debt, whatever the sum may be. Some further emendatory provisions of the ancient law might, without doubt, be useful, and some have been suggested from a most respectable quarter. † The importance of the ameliorations suggested above, slight as they may appear, may be estimated by inspecting the numerous details on this subject, which have been published. The details, to which I refer, are of a melancholy and painful interest, but my limits do not permit me to give even a summary of them. ‡

All experience teaches, that it is best to reform gradually. A learned judge, who has had very great experience in the administration of criminal law in one of our city courts (the Municipal Court of Boston), once remarked to me; "It is impossible to remedy all the evils of society; and, when one evil is believed to be cured, another of equal, if not of greater magnitude, is frequently seen to break forth, in an unexpected quarter." He illustrated his remark by stating, that, since imprisonment for debt had been abolished, as a means of coercing payment in Massachusetts, the number of indictments for obtaining goods on false pretences had manifestly increased within the jurisdiction of his

court.

* See Tenth Report of the Boston Prison Discipline Society, pp. 9, 10. 1 See Fifth Report of the Boston Prison Discipline Society, p. 54.

See "The Penitentiary System of the United States," by Messrs. Beaumont and Tocqueville, Dr. Lieber's translation, p. 183;- and more particularly the Reports of the Boston Prison Discipline Society, for the years 1830 - 1832.

The codification of the law, that is, its reduction to an authoritative system, is recommended by various considerations, which address themselves to every man of patriotic feelings and spirit. It seems too plain to admit of argument, that the people who are to obey the laws ought, as far as possible, to have the means of understanding them. The object of reducing them to a code is, to give greater certainty and simplification to the principles of the law, to rid its practice more effectually of antiquated forms, to make its phraseology more intelligible to persons of good understanding not of the profession, to diminish the expense of its administration, and to remove from the minds of the common people any jealousy, well or ill founded, which may exist on the general subject of the law. That the codifying of the law will banish litigation, which proceeds in so many cases from the infirmities of our nature, the imperfection of all language, and the infinite variety of circumstances in human affairs, it would be entirely visionary to expect. But it is confidently believed, that by reducing to a uniform and continuous text, and digesting under appropriate titles, the mass of scattered laws, litigation may be considerably diminished, the administration of justice may be facilitated, a knowledge of the law be made more accessible to the community generally, and public confidence in the judiciary be thereby increased. Such results, and particularly the last, are highly desirable. It is not sufficient that the laws should be righteously administered;—in a popular government, like that under which it is our happiness to live, it is equally desirable, that the tribunals should be strong in the affections of the community. The law must be respected as well as obeyed, or it will not long be obeyed. It is the judiciary which chiefly brings the government within the sight, and home to the interests, of the people; and it is well worthy of consideration, how the confidence of the people, in this branch of the government, may be confirmed, perpetuated, and, if possible, increased.*

The law is accumulating with a rapidity almost incredible; and, with this accumulation, the labor, both of students and of the professors of the law, is rapidly augmenting. Both are in some

* See Governor Edward Everett's Message to the Legislature of Massachusetts, June 6th, 1836.

danger of being buried alive, not in the catacombs, but in the labyrinths of the law. Thus, too, it was in ancient times. When the Emperor Justinian directed his chancellor, Tribonian, early in the sixth century, to associate with him a number of skilful civilians, and to assume the great task of collecting the entire body of the Roman law, which had been accumulating for fourteen centuries, into one systematic code, he and his associates found this law dispersed in two thousand volumes, and in upwards of three millions of small tracts or fragments, detached from the writings of the sages, which it was necessary to read and understand, in order to make the selections. The size of these volumes, and the quantity of matter in these tracts and fragments, we cannot well ascertain ; but it is by no means probable, that they exceeded the quantity of our law, embracing, as it does, the great body of the English law.*

To this state of things there seems to be but one adequate remedy, and that is, a digest, under legislative authority, of those parts of our jurisprudence, which have become well settled, and have otherwise acquired scientific accuracy. We may thus have a general code, which will present, in its positive and authoritative text, the most material rules to guide the lawyer, the statesman, and the private citizen. It is obvious, however, that such a digest can apply only to the law, as it has been applied to human concerns in past times. But by revisions, at periods more or less distant, it may be made to reflect all the light, which intermediate accessions may have thrown upon our jurisprudence. To attempt more than this, would be a vain labor. To believe, that all human concerns for the future can be provided for in a code, speaking a definite language, is to indulge in the theoretical extravagances of some philosophical jurists, whose best apology is, their good intentions.

It will be an achievement worthy of the best endeavours of our legislators, statesmen, and lawyers, to reduce the past to order and certainty. And we have examples in which this has been so triumphantly accomplished, as to put the enterprise beyond the reach of cavil. The Pandects of Justinian, to which I have

* Præf. ad Dig. § 1.-Kent's Commentaries on American Law, Vol. I. p. 499.

before adverted, are a monument of imperishable glory to the wisdom of the age in which they were digested; they gave to Rome and to the civilized world a system of civil maxims, which has not been surpassed in usefulness and equity; they superseded, at once, the immense collections of former times, and left them to perish in oblivion. Several of the United States, too, have digested their Statute Law to their satisfaction, and in this way have made a successful beginning of an undertaking, so desirable to be brought to a completion. The modern code of France, moreover, embracing, as it does, the entire elements of her jurisprudence in the rights, duties, relations, and obligations of civil life; the exposition of the rules of contracts of every sort, including commercial contracts; the descent, distribution, and regulation of property; the definition and punishment of crimes; the ordinary and extraordinary police of the country; and the enumeration of the whole detail of civil and criminal practice and process, is, perhaps, the most finished and methodical treatise of law, that the world ever saw. This code forms, also, the law of Holland, and, with comparatively few alterations, has been adopted by the State of Louisiana, as its fundamental law.

The opinion is manifestly gaining ground, that it would be practicable to incorporate into a uniform code, along with the Statute Law, those numerous principles of the Common Law, which are definitely settled and well known, and which, without being reduced to the form of a positive and written text, have been and still are left to be applied by the courts, whenever the occurrence of cases requires it. Of this difficult question, it is fortunately not required of me to hazard an opinion, as I can cite the judgment of another, much more entitled to be heard on this subject than myself. Of the modern code of France, Mr. Justice Story says, "The materials of it were to be sought for among an almost infinite variety of provincial usages and customary laws; and were far more difficult to reduce into system, than any which belong to the common law. It is left to the future jurists of our country and England to accomplish for the common law, what has been so successfully demonstrated to be a practicable problem in the jurisprudence of other nations; a task, which the modest but wonderful genius of Sir William Jones did not scru

ple to believe to be within the reach of a single mind successfully to accomplish." *

3. The penitentiary system, contemplated as a means of meliorating the condition and promoting the welfare of mankind, might have been comprised under the view which I have taken of our penal jurisprudence, but its intrinsic importance has induced me to give it a distinct consideration. The first idea of a reform in American prisons belongs to the Quakers of Pennsylvania. They had always protested against the very severe laws, which the colonies inherited from the mother country. In 1786, they succeeded in making their voice heard; and, from this time, the punishment of death, mutilation, and the whip were successively abolished, in almost all cases, by the Legislature of Pennsylvania. In 1797, the reform of Pennsylvania was imitated by New York, and has since gradually made its way into favor and been adopted by most of the United States.†

In regard to most of the institutions established in this country, we have had the experience of Europe with which to begin; but, in establishing and building up this institution, American as it is in its origin, it was inevitable, that many mistakes should be made, which a stock of experience would have prevented. At first, classification of the criminals was attempted, in order to counteract the usual effect of their mutually contaminating each other when placed in rooms promiscuously. Still this mutual contamination was very little, if at all checked. This plan proving a failure, new prisons were built, in which a solitary cell was appropriated to each convict. This he was not to leave day or night, and all labor was denied him in his solitude. No expense was spared to render this experiment successful, and the public was impatient to know the result of the new trials. The northern wing of the Auburn (N. Y.) prison having been nearly finished in 1821, eighty prisoners were placed there, each in a separate cell. This trial, from which so happy a result had been anticipated, was fatal to the greater part of the convicts. In order to

* Miscellaneous Writings, p. 437, to which this and the preceding paragraph are otherwise considerably indebted.

+ See Penitentiary System of the United States, by Messrs. Beaumont and Tocqueville, Dr. Lieber's translation, pp. 1-3.