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of the work, is the definition and description of crimes; in digesting and preparing the different titles of which, however, it is also requisite to collect and arrange the materials for the other parts of the code relating to these same titles, since the materials for the different parts of the code, in relation to any particular subject, are more or less connected and blended together in the books. The more important, extensive, and difficult titles have been first undertaken; such as treason, homicide, burglary, robbery, larceny, perjury, libel and arson, most of which have been written out, and much progress has been made in the others. These titles, it will be seen, on reference to the books, occupy a proportionally great space in the body of the criminal law; and, in preparing these, the commissioners have incidentally done much towards the others. Still, until the whole ground has been gone over, it is not possible to estimate what proportional part of the labor has been accomplished; nor even then, until, by comparison of opinions and deliberate discussion, by the whole board, upon each proposition, successively, in some of the articles, it shall appear how great will probably be the labor of finishing the various parts, and putting them in a state, in which the commissioners shall deem them worthy to be submitted to the legislature. For these reasons, they cannot, at present, fix upon a time when the code may probably be reported. The object of the present report is, to submit a specimen of the plan, and to state what the commissioners understand to be the leading objects in view in providing for the proposed work. And, in so doing, they will necessarily at the same time state the leading principles upon which they are proceeding in its execution, that the legislature may thus have the means of forming an opinion of the proposed plan of the work; and of correcting any misapprehension, into which the commissioners may have fallen; and may WOL., XXI.-NO. XLII. 19
give them any further instructions respecting it, that may be deemed expedient. The resolve, under which the commission is constituted, directs the commissioners “to reduce so much of the common law of Massachusetts, as relates to crimes and punishments and the incidents thereof, to a written and systematic code, specifying separately such alterations and amendments therein as they may deem expedient.” By the description “common law,” the commissioners understand to be intended the unwritten law, in the broadest sense of the expression, as distinguished from written or statute law. To ascertain, then, how much of the entire law of crimes and punishments is to be reduced to a code, it is necessary, first, to ascertain to what extent each title of the criminal law has been covered by the statutes. And, in doing this, the revised statutes afford very great assistance; since if the statute law had remained in the state in which it was before its revision, in 1836, the first step for the commissioners would have been the laborious process of collecting, digesting, and arranging the scattered provisions of the statutes, and embodying them in a form like that in which they are now presented. On examining the statutes, it will readily appear that they contain provisions respecting the greater part of the offences known to our jurisprudence, but not all of them; for, there are some classes of offences now punishable in this commonwealth, which are nowhere mentioned in the statutes. And, in relation to those which are so introduced, the provisions are much more full in respect to some than in respect to others. If we may suppose the whole law, then, statute as well as common, to be represented by a chart, similar to the historical charts often met with, the statute law occupying one side, and the common law the other, we should see some breaks in the statutory part, where a class of offences is wholly omitted, as, for instance, conspiracy; and, in others, we should see chasms, where some particular species or variety of a class is wanting; and the statutory portion would in some titles extend a very little breadth, and, in others, a much wider breadth, in comparison with the common law, so that the two would be divided by a very irregular boundary. Again, in some cases, the statutory provisions are comparatively concise; and though they may cover the whole breadth of the offence, as known to the unwritten law, or be so worded as to exclude any wider extension of the offence beyond the provisions of the statutes; yet they are so general in their terms, as in fact to leave every thing within their limits to be settled by the unwritten law. Thus, when the statute law forbids “murder,” it is necessary to resort to the common law to ascertain the meaning of the prohibition. And where an act is forbidden, if done “feloniously,” we cannot know distinctly what act is thus prohibited, until we ascertain from the common law the meaning of the word “feloniously.” We resort to the common law, then, for two distinct purposes; the one to find prohibitions and rules independent of the statutes, the other to find definitions, expositions, and illustrations of the language and provisions of the statutes. The unwritten law thus consists of portions that are quite distinguishable from each other in this respect, and the distinction needs to be borne in mind in discussions and theories respecting written and unwritten law: for, the question, whether it is expedient that the written law should define a particular crime and assign its punishment at all, or leave it to the unwritten law, and the other question, how particular and precise the definition should be made, are very different, and the reasons for or against, in regard to one, do not apply in the same way, and with the same force, in respect to the other. This distinction is the more particularly noticed, as it has a bearing in relation to the proposed plan of the code. The question then arises, of what does the common law of this commonwealth consist? And the answer will present a cogent argument in favor of reducing it to a written law, and give some idea of the labor and difficulties attending the undertaking. The constitution' provides, that “all the laws which have been adopted, used, and approved in the province, colony, or state of Massachusetts Bay, and usually practised on in the courts of law, shall still remain and be in force, until altered or repealed by the legislature; such parts only excepted, as are repugnant to the rights and liberties contained in this constitution.” What then were the laws, which had been theretofore adopted, used, approved, and practised on in the courts of law As far as the English law is concerned, it has been held by the supreme court,” that the early emigrants to this country brought with them “the common law of their native country, as it was amended and altered by the English statutes in force at the time of their emigration,” “except such parts as were judged inapplicable to their new state and condition.” Now, as very many of the English acts of parliament in relation to crimes and punishments were amendments of the common law, the result is that the mass of the written and unwritten criminal law of England was, by the above article of the constitution, adopted in Massachusetts, except those parts which were inapplicable to the condition of the country, and those which had been superseded by our own legislation or were repugnant to the constitution. To as
* Chap. 6th, art. 6th.
* Commonwealth v. Knowlton, 2 Mass. Reports, 534; Commonwealth v. Leach and others, 1 Mass. Reports, 61; Sackett v. Sacket, 8 Pickering's Rep. 59; Report of the Commissioners on the practicability and expediency of codifying the common law, 1836.
certain, then, what our unwritten law of crimes and punishments is, we have to ascertain what was the written and unwritten law of England, in the early part of the seventeenth century. And, to do this, we must resort to English publications down to the present time, as there has never been any legislative declaration, or any publication in this commonwealth, distinguishing through all the branches of the English criminal law what part of it is in force in this State. But, though the statute laws of England down to the period of emigration, in amendment of the common law of crimes and punishments, as far as they were applicable and have not been superseded by the constitution or by legislation, are thus considered to be a part of the unwritten law of the state, yet those statutes have, on the whole, occupied but little space in our jurisprudence, as far as relates to the description of crimes and designation of punishments, having, in these respects, been mostly superseded; still it cannot be said with confidence, that no such part of the criminal law of this commonwealth, does not now, through the provision of the constitution cited above, depend directly and solely upon some act of parliament, which has been repealed in England more than two centuries; because it is not easy to say, what law might or might not be adjudged to be applicable to the condition of the country. A forfeiture of land on account of waste, as has been adjudged," was liable to be incurred on an English statute, dating more than four centuries back, and which was not known to have been, previously, actually adopted and acted upon in our jurisprudence. It is presumed, however, that in stating the existing unwritten criminal law of this commonwealth, it is not requisite to explore the obscure recesses of the English statutes at large, previous to the seventeenth
Sacket v. Sacket, 8 Pickering's Reports, 59.