is far from deserving exclusive censures. But it is of it as a whole, in its fundamental principle and in the consequences which flow from it, that the publicist and the criminalist, friendly to progress, must pass judgment upon this code.

The criminal code of Brazil, promulgated about the end of the year 1830, appeared almost on the eve of the revolution, which changed the head of the empire, and placed a young son on the throne, in the place of his father. The sanction of this code was in some sort the last imperial act of Don Pedro. The code is nothing more than a penal law; it treats neither of judicial organization, nor of criminal procedure. It is not here, as in the Austrian empire, the work of an absolute monarchical power, but the legislation of a constitutional country, decreed by a general assembly, in the name of the country.

The philosophical theories concerning penality, long discussed in Europe, and recently attempted to be applied in some of the American states, appear in the Brazilian penal code. Still, by the side of some incontestable improvements, we may see there also traces of that inexperience of public powers and of constitutional life, which the political events of this rising empire reveal.

The punishments inflicted by this code are, in general, of an extreme mildness; and, in some cases, perhaps, this principle might be thought to be carried too far, if the natural character of the people did not explain the indulgence of the legislator.

The abolition of the punishment of death is realized in an absolute manner, in regard to all political crimes. That which the generosity of our revolution of July and the mildness of our political civilization have in fact produced with us since 1830, is, since the same period, found written in the law of Brazil.

This punishment of death, the last of all earthly punishments, ultima ratio legum, is only inflicted upon the crime

of homicide accompanied by circumstances of the most aggravated degree (art. 192 and 271); and, in the case of an insurrection of slaves, upon the leaders of the insurrection (art. 113); for, in order to maintain the unnatural law of slavery, it was quite necessary to depart from the philosophical principles, adopted in regard to common crimes.

A few examples, taken at random, will suffice to give an idea of the mildness of the Brazilian penal code. Thus, infanticide is only punishable with imprisonment of from three to twelve years and a fine, when it is committed by persons other than the mother, and by imprisonment with labor of from one year to three years, when it is committed by the mother, in order to conceal her dishonor (art. 197, 198); bigamy is punishable by fine, and imprisonment with labor of from one year to six years (art. 249); and the crime of counterfeiting, by the same kind of punishment, the minimum of which may be reduced, according to the nature of the case, to two months, and the maximum of which cannot exceed eight years (art. 173 to 176).

Under the political relation, the penalties which guarantee to the constitutional bodies, and to the citizens, the full enjoyment and the free exercise of their political rights and functions (art. 91 and following, art. 100 and following); the protection given to individual liberty, and the broad and efficacious institution of the habeas corpus (art. 179 and following); and, finally, the reserving of the responsibility of ministers and counsellors of state for the provisions of special laws (art. 308), sufficiently inform us, that we are here in a country of constitutional and representative government.

The penal laws and the laws of criminal procedure of the two Sicilies are not, like the two codes which we have just examined, an original work, but a legacy of the French dominion, received, appropriated, and modified by the Neapolitan genius. The foundation consists of our penal code and our code of instruction, upon which, on the one

hand, the restored royalty with its practical ideas of absolutism and theocracy, and, on the other, the Neapolitan science with its theoretical studies of morals and penality, have each exercised an influence. Such is the double character, presented by these laws considered as a whole.

Thus, published in 1819, they preceded, in many points, the improvements, for which we are indebted in France to the law of April 28, 1832. Twelve years before our reform was effected, they had suppressed the iron collar, exposition, branding, and cutting off the hand, from the catalogue of punishments (art. 3, penal laws).

Civil death, the wretched legacy of the punishments and subtle fictions of another age, has been effaced from both the civil and criminal laws, and its place supplied by provisions, which, though analogous, do not present the same inconveniences (art. 6, penal laws).

Finally, the first article of the penal code announces, as if by way of epigraph, and in the form of an axiom, the principle, that "no punishment is infamous,”—a principle, which we have not yet had the boldness to insert in our laws, and which nevertheless is founded in reason; for infamy results from crime; it is public opinion which inflicts it; it is not in the power of the legislator. The Roman law asserts the same principle, when it says: Factum lex notat, non sententia. Ictus fustium infamiam non important, sed causa propter quam dantur.

If the Neapolitan codifier has taken away from the punishment of death all corporeal pain and mutilation, which might be joined as accessory to that punishment, he has nevertheless thought himself able to introduce varieties into the mode of its infliction, by the material means of executing it, as by beheading, hanging on a gibbet, or shooting (art. 4), and by the attendant circumstances, with which this execution may be surrounded, for the purpose of making it a public example.

"The law," says article 6, "indicates the cases in which the punishment of death ought to be executed in a special manner, by way of public example."

The degrees of public example are the following:

1. The execution of the punishment in or near the place where the offence was committed.

2. The conveyance of the criminal to the place of execution, barefooted, clothed in yellow, and with an inscription on his breast, indicating his offence in capital letters.

3. The conveyance of the criminal to the place of execution, barefooted, clothed in black, and his face covered with a black veil.

4. The conveyance of the criminal to the place of execution, barefooted, clothed in black, his face covered with a black veil, and drawn upon a plank with small wheels, with an inscription on his breast, bearing in capital letters the words: impious man.

This last degree of public example carries back our attention to the kind of crimes, to which it is applicable, those upon which the Neapolitan law first inflicts punishment, and by which it commences its list of repression, namely: crimes against the respect due to religion (book 2, title 1), to which the secular arm extends itself and punishes for the venging of divine things; and, in which profanation and blasphemy are materialized and subjected to terrestrial punishments. If the ameliorations, which we have enumerated above, have preceded our reform of 1832, this title against religious crimes, in the Neapolitan code, has also preceded the law of sacrilege, which the restoration imposed upon us some years afterwards.

The laws of the two Sicilies concerning criminal procedure present the same character with the penal laws. Thus, by the side of evident ameliorations in the details, for example, in reference to the divers sorts of mandates (art. 114, 115), to their reformation by the tribunals (art. 110),

to liberty on bail, (art. 132), all of which are provisions, extending the guarantees due to individual liberty, we find the right of the defence continually threatened by art. 561, which invests the high courts with the power to admonish and even to suspend those advocates and attorneys, who, says the law, make use of circumlocutions, dilatory means, quibbles, in the cases with which they are charged; and the suppression of the jury, a judicial guaranty, which in itself alone includes the germ of all those which are due to the accused. The means by which the Neapolitan law, while it rejects the jury, attempts to alter, as little as possible, a procedure established for that institution, and to preserve the forms, the questions and the answers of fact, which belong to it, even in the bosom of the criminal court, are an interesting subject of examination.

A study of the three systems of penal law, of which we have spoken, in connection with each other, may furnish elements and points of comparison, useful for the decision of many questions, which are still discussed in the science of penality; for example, in reference to the theory of attempt, which each of these systems, though with divers shades of difference, punishes with less punishments than the crime consummated; in reference to complicity, in which these systems also establish different degrees, instead of the uniform and inflexible rule of our code; and, lastly, in reference to the theory of pecuniary fine (amendes) and the investigation of a system, which shall introduce equality into this punishment, by proportioning it to the fortune and the means of the condemned.

We may remark also in this code the efforts which every penal system is obliged to make, which rejects the institution of the jury, in order to supply the deficiency; and the necessity which then arises for strict rules in regard to the divers degrees of culpability,-of defining with the most minute precision the attenuating or aggravating circum