in many cases, be without remedy. The agreement between two or more persons is an act which shows a settled design; and is clearly distinguishable from an intent formed in the mind of an individual, not only because of its being more susceptible of proof, but also from the circumstance, that, if the original design of the individual could be made to appear, a change of purpose might have taken place, of which no evidence could be given; whereas, a combination between two or more must have been communicated by some outward acts, and the renunciation of the project evidenced in the same way; both being susceptible of proof. A combination too, although discovered before execution, is injurious, because it excites alarm in the person who was the object of it, and a sense of danger and suspicion in the whole community, which the most determined but secret intention of an individual could never do. The danger is also increased by the character of the injury to be effected by these combinations; they being, for the most part, such as individual malignity alone could not accomplish. For these reasons agreements to do certain acts, although never carried into execution, are, in this and other parts of the code, made punishable as offences.

The third head under which conspiracy is made an offence, although the act agreed to be done would not be an offence, without such previous agreement, requires more elucidation. Its object is to prevent combinations injurious to trade, by raising or depressing wages. This subject is one that has engaged some attention lately in England, where the laws, as they now stand, prohibit combinations among workmen for raising their wages, but do not consider, as an offence, a similar agreement among employers to lower them. To impose as few restraints as possible upon the liberty of action, is undoubtedly a sound rule, in that part of legislation which may operate upon political economy; and therefore it might, on a superficial view, seem that any regulation, as to the conduct of those concerned in manufactures and trade, in relation to the price they may choose to put on their own labour, or give for that of others, would be contrary to this rule. But the law interposes here, not to impose a restriction, but to prevent one from being imposed by an incompetent authority. Every labourer has a right to refuse his services, unless the price which he appreciates them at, be that price ever so extravagant, be paid. Every employer has the right to refuse the same service, unless the price be reduced to the sum he thinks it worth. But whenever an agreement takes place among the class of employers or labourers, for regulating these prices, then such an agreement becomes, to the extent to which it can be enforced, a law operating for the reduction or advance of wages, and a law made by parties interested in the imposition of it; and, therefore, necessarily unjust; and, if permitted, would be, in effect, a usurpation of the powers of legislation, and an unwise and oppressive exercise of them: for, although an agreement be only a law to those who are parties to it, yet, when the object of it is to affect the interest of others in a way in which they would not be effected but for such agreement, it is in its operation, although it may not be in its form, a law operating, though not binding, upon those who are not parties to, but objects of the agreement. Suppose a law instead of an agreement, and that a statute should render it unlawful in any employer to give more than a certain price to his labourers, the effect upon this last class would be precisely the same; yet

such a law would be acknowledged to be one at variance with the principles of free exertion, free use of capital, and free competition. The agreement, therefore, is hostile to these principles, and ought not to be permitted. For these reasons the code, in conformity with the English law, imposes a penalty on any two or more persons conspiring to raise the price of wages; but it adds to that provision, one which is wanting in the English statute, imposing a similar penalty on a combination between employers to reduce the price of labour. Without this, the law would be partial and unjust in its operation. Employers in any one branch of manufacture, being, comparatively to the operators, few in number, an agreement between them is more easily made; more readily enforced among themselves; and, while their wealth enables them to wait the effect of their combination, the poverty of those against whom it is directed, obliges them soon to yield to the dictates of their employers, be they ever so oppressive. This inequality in the effects of this offence, between these two classes of men upon whom it reciprocally operates, requires a correspondent difference in the punishment; and it is, therefore, directed that imprisonment shall always be part of the sentence against employers for a combination to lower the rate of wages, for this cogent reason, that the highest limit which could be given to the fine upon the labourer, would be no punishment to his wealthy employer, who should be guilty of the same offence. It is also provided, that an agreement to require a longer time to labour in the day, or to decrease the number of working hours, without altering the price, shall be considered as a combination to lower or raise the rate of wages; and if the agreement be to inflict any injury on those who will not become parties to it, the punishment is to be doubled. Other articles are contained in the text, calculated to explain, and carry into effect those which have been commented on, and to guard against abuses in enforcing them.

The rapid view I have thought it necessary to take of this important branch of the work committed to me, is now finished. Some comments and arguments that, perhaps, ought to have formed a part of it, have been doubtless omitted. They will readily be supplied by the intelligence of the body to whom it is submitted; but I much fear that the reproach of having unreasonably trespassed on their attention, may have been more justly incurred. Yet nothing has been advanced which was not thought necessary to the elucidation of the great variety of provisions contained in this code, and much was designedly left to be supplied by reflection.

INTRODUCTORY REPORT

TO

THE CODE OF PROCEDURE.

I HAVE now the honour to present the second of those codes which your law has directed me to prepare. The legislature, which passed that law, were aware that no system would be complete without a Code of Procedure. Expense, delay or uncertainty, in applying the best laws for the prohibition of offences, would render those laws useless or oppressive. Therefore, this division has been considered of equal importance with any of the others, but more extensive in its operation than either of them. The party committing the offence and the individual injured, rarely the whole community, are the only persons immediately affected by the commission and punishment of a crime. But in the measures prescribed for preventing or prosecuting them, every citizen, however unconnected with the offence, may find himself involved. As a judge, a magistrate, a civil or military officer, or even a private citizen, every one is liable to become an active party in the task of applying the law, after a breach of its provisions has taken place, in preventing the commission of a crime, or in arresting the progress of such as are continuous in their nature. The rules which direct us in what manner, under what circumstances, and to what extent we may use force to protect our own persons and property, or those of another, against unlawful violence, also belong to this division of the law; so that its provisions are more required for daily use than those of any other part of the system; and it may, therefore, without impropriety, be said, that a society, however excellent may be its laws for defining crimes and affixing to them proper punishments, will, if the means of carrying them into effect are expensive, dilatory and uncertain, be worse governed than the community in which the Code of Crimes and Punishments is faulty, but where the rules for executing it, and for preventing and arresting the progress of offences, are easy, cheap, expeditious and just. More attention, therefore, has been paid to this branch of the subject than the little importance, commonly attached to it, would seem to warrant. None of the codes which have come within my knowledge, either ancient or modern, except the French, contain any separate body of laws directing the mode of procedure, either for arrest, trial, punishment or prevention. Our laws, as we have seen, are wofully defective in this particular; giving for acts, which, by some laws, are declared to be offences, no rule whatever; and for the others,

referring us to the English common law, unmodified by statute. The necessity, therefore, of a Code of Procedure was much more urgent than that which existed for a Code of Crimes and Punishments. The system adopted in the prosecution of certain offences, by the legislature, and in that of others by the courts, with the modifications introduced by our statutes, is freed from many of the abuses and oppressions to which criminal prosecutions in England are liable: a public officer being appointed to prosecute, the individual who has suffered by the crime, is not, in addition to his loss, put to the expense of bringing the offender to justice: jurors being taken by lot, no improper influence can be exerted in the arrangement of the panel: the assistance of counsel being secured in all cases, the defendant, no matter of what he is accused, is enabled to make his full defence: and the intervention of a grand jury being rendered necessary in every case of a grave accusation, the individual is not exposed to vexatious prosecutions that can materially affect him. Standing mute is considered as a denial, not a confession. Appeals of murder, trials by battle, and many other oppressive and absurd parts of the ancient common law, have never been used in our state. Yet, with all these comparative advantages, our practice requires reform.

First, because the exemption from several of these and other inconveniences is, in many instances, not secured by law; and, in others, is given to us by the construction of the court, contrary to law. In the Introductory Report to the System of Penal Law, it has been shown, that where the common law of England is prescribed as the law of our procedure, it is spoken of without any of the amendments introduced by the English statutes; and that in all acts, which are created offences since 1805, no mode of procedure whatever has been provided.

Secondly, because, if the present mode of procedure were sanctioned by law, it would require alterations and additions in the several particulars in which they have been introduced in the code, some of which will be hereinafter pointed out, with the reasons for introducing them.

Thirdly, because of the difficulty, expense and inconvenience, before enlarged upon, of referring to foreign laws, written in a language which a majority of our citizens do not understand.

Fourthly, because of the uncertainty inseparable from laws depending for their authority upon judicial decisions.

Fifthly, as incident to the two last, because of the ease, convenience, and indeed necessity, for all those who wish to perform their duty as good citizens, of finding in one book, couched in language easily understood, and arranged in a method making them easily accessible to all; the rules necessary to direct them in all the cases in which self-defence, the prevention of crime, the arrest of offenders, and their high duties as magistrates or jurors.

The Code of Procedure now offered, sets out, as that of Crimes and Punishments does, with an introductory chapter, containing a brief exposition of the objects which it is intende to effect. To this enunciation I have heard no objection stated, and its utility has been acknowledged by many of those statesmen and jurists to whom the plan has been submitted; it has, therefore, been retained.

The first of these objects, in order, as well as in importance, is the