greater than the fear of it. If the dread of it, be a valid reason for withholding the means requisite to obtain the necessary proof to authorize its infliction, much more is it a reason, why such punishment should never be borne. The more burdensome punishment is than its anticipation, so much stronger the argument for exemption from all punishment than that for excluding the proof by which guilt may be established.

Evidence is offered for the purpose of punishment - the punishment, the object of its introduction is urged as an argument for not receiving it. The law punishes for the omission, or commission of certain acts this punishment is hard to be borne, else it would hardly be punishment therefore, because of its hardness, you are excused from disclosing, what may lead to such unpleasant consequences. The law, the

reason for its own nullification. A man is tried with the avowed intent of subjecting him to punishment - the means of ascertaining guilt are withheld, lest they should lead to the infliction of the punishment desired. Because punishment is hard to be borne, therefore, it need not be inflicted. Were punishment not punishment - something pleasant and desirable—it would be otherwise.

The punishment to be imposed, let it be remembered, must in all arguments on the subject be considered as just and expedient the offence for which it is inflicted, as deserving the precise penalty imposed. Were it otherwise did the act, whether of omission or commission, deserve a milder, or were it entirely undeserving any punishment, the proper remedy would be a repeal of such injudicious law.

An utterance of testimony is attended with trouble and vexation. The utterance of testimony by the prisoner is attended with no greater hardship, than that of any other witness, save to the extent of fear of punishment arising, or to arise from such testimony. The witness, then, by the assumption guilty, but reluctant to disclose such guilt, on account of the punishment consequent thereon-for when there is no punishment, the simple labor of utterance, a reason applicable to all witnesses, is the only objection, might be supposed to address the judge, or the legislator in something like the following language.'

1 In Hardre's Reports may be seen an edifying argument on this subject, in the case, The Attorney General v. Samuel Mico. Demurrer to a bill

'I, and not I alone, but the whole tribe of criminals - for in this matter, there is a wonderful union of sentiment -I am averse to pain, to suffering, to punishment. All wrong-doers have a similar aversion. By subjecting me to examination, as I am guilty, it could hardly happen, that I could adopt any course, which should be free from danger. Indeed, were it not for the expected proof against me, you would hardly inquire. What is very obvious, a matter you cannot help perceiving, is, that my path would be beset with danger. Silence, you would consider as a mark of guilt-falsehood, when detected, would excite your suspicions and the truth would assuredly condemn me. This prying into my conduct — this investigating my doings this eternal questioning I abhor, it cannot do me any good. I should prefer the exclusion of all testimony, by which my guilt, could be established. Indeed, considering the hardship, the law should be so; but, if this cannot be granted, deliver me from all examinations, all questionings as to any transactions of mine. They will not bear it. In fine, I

to discover certain forfeitures to the commonwealth. Hardres for defendant. 'I shall consider the demurrer consistent with and agreeable to all manner of laws, the law of God-the law of Nature the law of the land.

1. For the law of God. That not only allows, but rather commands, every man to preserve himself from hurt and damage; as appears by the case of St. Paul, mentioned in the Acts of the Apostles, who being accused by the orator Tertullus for sedition and other crimes before the governor, answered, I am not careful to answer thee about these things in that I am not bound to answer thereto. And when Pontius Pilate asked our Savior some questions, he answered nothing: whence it appears what the law of God and the God of law allows in such cases of crime.

2. For the law of Nature. That is of the same stamp; hence the rule, Nemo tenetur, &c. The second head I insist on is reason. 1. It is against the common practice of all courts of justice to enforce men to answer in such cases 2. There is no precedent of any such practice for twenty years and upwards last past; and disuser renders a thing absolute 3. By third reason it is ab incongruo. It is a very incongruous way of proceeding; for by this way the ordinary way of proceeding by information and indictment would be interrupted, and the rule is, Non est decurrendum ad extraordinaria ubi valet ordinarium. 4. If this were allowed, what need would there be of searchers and officers to look after such things? 5. Because the matter charged is a direct crime, &c. &c.

'So it appears the ecclesiastical court cannot examine men upon their oaths against their wills only in two cases: but not in criminal cases, as incontinency, &c. &c. For as the civilian says, that was inventio diaboli ad destruendas miserorum animas ad infurum,' &c. &c. &c.

wish to avoid all punishment. Truism, though it be, I have great reluctance to enduring suffering, and wish to avoid whatever may lead to it.'1

The argument of hardship presupposes the testimony uttered true. It is hard, because truth will condemn him. If false, the prisoner would hardly beg to be excused from answering, lest he might commit perjury. Inquire of me, and I shall most assuredly commit perjury

therefore, to save me from this

sin, I beseech you, put no questions.'

The legislator, or the judge, usurping the place and functions of the legislature, having thus heard the reasons, why the law should not be enforced at once, from mistaken humanity; mistaken, so far as the body of offenders is concerned, inasmuch as uncertainty of punishment leads to increase of crime - mistaken, so far as the public are concerned, for they suffer by every guilty man, thus thrown upon the community, and by the incitement to crime, arising from every additional instance of escape from punishment - excuses the reluctant scoundrel from testifying. Aye, not merely excuses, but if perchance in a spirit of unwonted honesty, the accused should admit his guilt, he is advised, encouraged, and entreated to retract his plea, and substitute a lie, and the jury compelled to declare it the truth, even against the evidence of their own senses. Nor is even this enough, but the whole armory of quibbles is placed within his control and their use sanctioned, and approved, by the ablest and wisest judges.

2

Of these rules the effect is to screen the guilty, by exempting them from what they most dread—interrogation. Were the criminals to frame a code for their own special protection, their first provision would be to protect themselves from all inquiry into their conduct. The present law benefits the criminal, by exempting from the dangers of detection, and injures the innocent by depriving him from the benefits arising from an examination into his conduct.

Let them prove it,' says the scoundrel; 'Aye, let them prove it,' is the responsive echo of the judge.

2 Whatever may be the degree of guilt, how strongly soever proved, yet if the defendant is entitled to a legal advantage from a literal flaw, GOD forbid he should not have the full benefit of it.' Per Lord Mansfield in Rex v. Horne, Cow. Rep. 675.

As for the judge, the only reason he could urge, would be the fear of deception-for, if not deceived by testimony, no harm, so far as relates to correct decision, has ensued. But as deception would only be the result of incompetency, as the evidence can as well be weighed as any other, he will hardly exclude the evidence for that cause. The judge, who is fit for his station will never exclude any witness through fear, that after hearing, he may erroneously decide to do so, would be saying, that he can decide upon the truth of a witness, better without than with hearing him.'

The prisoner, then, should be examined, unless guilt on his part, or imbecility on the part of the judge, should be considered as affording valid grounds of exemption.

J. A.

ART. IX.-ON THE POWER OF THE LEGISLATURE, IN MASSACHUSETTS, TO SUSPEND A LAW, FOR THE BENEFIT OF AN INDIVIDUAL.

THE right of the legislature, to suspend the operation of a general law, in favor of an individual, after having been exercised by the legislative, and acknowleged by the judicial, department of the government of Massachusetts, for many years, both before and after the adoption of the constitution, was finally disallowed by the Supreme Judicial Court, in the case of Holden v. James, in the year 1814, (11 Mass. Rep. 396.) as unconstitutional. The propriety of this decision has not since, we

2

1 This subject has already been discussed in previous articles on the rules of evidence.

2 Those of our readers, who have been acquainted with the proceedings of the legislature of Massachusetts, for some years past, will be reminded, by the title of this article, of the celebrated case of WILLIAM VANS; whose ' continual claim,' against the decision alluded to, and whose unintermitted petitions to the general court, for a suspension of the law limiting the time for bringing suits against executors, &c., to enable him to prosecute an action against the executor of JOHN CODMAN, have rendered his name, and his supposed wrongs, as familiar in our halls of legislation, as the claim of Amy Dardin, or Beaumarchais, in the halls of congress or the 'plea' of old Peter Peebles, to the lovers of the pages of the author of

believe, been called directly in question; but, on the contrary, it has received the approbation of the court, in several cases, and particularly in that of Picquet, appellant, &c., in the year 1827, (5 Pick. Rep. 65.) In this latter case, the court deny the right of the legislature, in the following emphatic language: We think it very clear, that they [the legislature] have no authority by the constitution, to suspend any of the general laws, limiting the suspension to an individual person, and leaving the law still in force in regard to every one else.'

The question, whether the legislature has or has not this power, is one, which we deem to be of infinite importance to the citizens; and, believing it to have been settled, as we think we shall be able to show, upon insufficient grounds, we propose, (with all due deference to the learned judges,) to give it in this article a deliberate examination and discussion. We should . be glad, if our limits would permit, to extend our inquiries, and to examine the whole subject of legislation, in reference to its objects and purposes, and with a view to throw light upon our present undertaking: but, in this country, where legislation is itself regulated by fundamental laws, which may be applied to its exercise by the judiciary power, and where, consequently, the principles of lawmaking resolve themselves, not merely into what ought to be done, by an arbitrary and absolute power, but into what may be done, by one limited and restricted, such an investigation would require a volume, rather than an article. We shall confine ourselves, therefore, however reluctantly, and at the risk of diminishing somewhat the force of our reasoning, to the simple question, which we have announced.

The first step, in this inquiry, is, to ascertain, whether the right to suspend a law, in a particular case, is a part of the legislative power of a state, independent of all constitutional provision if it be so, then such power will exist in the constituted

Waverly. With the merits of Mr. Vans' case, we have nothing to do. Whether he has, or has not, a valid claim against the estate of John Codman, which, if the barrier of the statute of limitations were removed in his favor, he could establish at law, is a question, with which, we do not propose to embarrass ourselves. Those, who feel any interest or curiosity in relation to this case, will find a statement of it, in a report made to the House of Representatives, in 1833 — and, in a Review of that Report, by David L. Child, Esq. The latter contains some able observations on the dispensing power.