details are never attempted to be laid down in any code, though their outlines and general principles may be given by the written law.

The unwritten law, then, on the subject of crimes and punishments, presents a very extensive mass of materials, very widely dispersed, out of which the code is to be constructed; nor is the task of constructing a symmetrical system, out of these materials, by any means free from difficulties. For the most part, the rules, which constitute this branch of law, must be traced back to and be extracted from adjudged cases. And, as has been remarked by Mr. Livingston, to enhance the difficulty of this process, the cases on the penal law have been reported much less satisfactorily than those arising in civil jurisprudence; so that in many of them, it is not easy to learn what was the rule of decision. Sometimes the case being stated, several distinct grounds of the decision are given, but whether any one of those was considered a sufficient one, on which to rest the decision, or, two or more were considered to be requisite, does not appear by the report. Sometimes where the case has come before a court consisting of numerous judges, it is said that some of them were governed by one reason, others by another, in concurring in the decision, but how many were governed by this or that reason is not stated, and consequently, though the case was solemnly adjudicated upon and formally reported, it is not an authority to any rule whatever.

In other instances, a mass of facts is given, and the decision stated for or against the accused, but no reason, no doctrine, is precisely laid down nor can it always be satisfactorily deduced from the facts stated, taken in connection with the judgment rendered, since the facts are often defectively stated, and there are instances not a few, in which a report of a case, having been acquiesced in for some years as correct, has on resorting to the record been found to be

erroneous. These were instances of errors which the record supplied the means of correcting, but every thing material to the decision does not always appear on the record, and an error or omission in regard to any matter which does not so appear can be corrected or supplied only by resorting to the minutes of the judge, before whom the case was tried, or to some other report of the case.

The history of this branch of jurisprudence supplies numerous instances of errors in the reports of cases which have been thus corrected. In regard to defects of either of these descriptions, in any report of an English case, which cannot be remedied by resort to some other published report, the commissioners cannot, at this distance from the place where the proceedings were had, ascertain either the true state of the facts, or the precise rule of the decision; and the labor, perplexity, and uncertainty of the search, though not enhanced by distance of place, are sufficient discouragements to undertaking it, excepting in those cases where the most important questions are involved in the investigation. The only safe course, at this distance, seems to be, to pass by, and reject the authority of cases, the reports of which are evidently defective, in some material particular, or of the accuracy of which there is reason to doubt.

Where the case is accurately reported, and the rule of decision distinctly appears, then the question arises, whether it is sufficient evidence of that rule being a part of the common law. For though the decision of the courts are the most authentic evidence of the common law, it does not follow that all of them are equal evidence, and that every one of them is a demonstration of some point of the common law, whether given by a superior court, or a subordinate one, by one judge or many judges, by a unanimous voice or a bare majority; and whether pronounced in haste on a first impression at the trial, or on solemn deliberation by the assembled judges. There is such a thing as the weight of

evidence in matters of law, as well as in matters of fact, and as the testimony of some witnesses is very slight proof, while that of others is very strong proof, of the facts stated. by them, so some decisions of courts are very inconsiderable evidence, while others are very cogent evidence of the law. And then the number of decisions to any point of law is to be considered, no less than that of the witnesses to any matter of fact. Thus, Mr. Christian says, and truly, that the number, and authority of the decisions concurring in the same doctrine, may be so great, as to establish as law what is flatly absurd and unjust.

But no one will attribute this efficacy to all precedents indiscriminately. In extracting the rules of the unwritten law from the great mass of decisions through which they are scattered, it is necessary to consider in each case, the weight of the authorities by which they are supported, and even sometimes, whether they are supported by an authority entitled to any weight whatever. Particularly in case of discrepancies it is necessary to compare the weight of authorities on the two sides of a question. This comparison is to be made, not only between different cases, but sometimes in the same one, where the judges were divided, and where the ruling of one judge is, on the case being reserved, overruled by a small majority of all the judges. And in making this analysis, though there are instances of doctrines so firmly established, that their binding authority cannot be called in question, however anomalous or unreasonable they may be, yet in very many precedents, at least, (what proportion of the whole it is not easy to say) their mere naked authority, independently of their reasonableness, and their conformity to acknowledged general principles, is by no means conclusive, so as to preclude all examination or question.

Such are understood by the commissioners to be the extent, and the component parts, and such the depositories of

the unwritten law, which the legislature propose to reduce to a systematic code, and such the process to be gone through, in order to extract the rules and propositions, of which such a code must consist.

The commissioners had hoped, that in one part of their labors, namely, that of settling what is the common law of England, they should have been able to avail themselves of the final report of a board of commissioners, appointed under an act of the British parliament, in 1833, for the purpose of collecting and arranging the doctrines of that law. It does not, however, appear, that they have as yet brought their labors to a conclusion.

A question of no little difficulty and importance, in preparing the proposed code, relates to the minuteness and particularity, to which it is expedient to carry the codification. For a code covering precisely the same extent of subjects, may be very short, or may be expanded into a great bulk. For instance, the written law may either provide, that whoever commits murder, shall suffer death, or instead of this concise enactment, it may define what is meant by murder, and having given this description, may go still further, and explain and illustrate it. And yet in either case, the code will cover precisely the same extent of subjects.

It appears to the commissioners, that the codification of the criminal law should only stop at that limit, by going beyond which, the law cannot be made more plain, precise, and definite. For where the law requires the citizen to do or abstain from certain things, under a penalty, and invests officers with authority to use coercion and inflict pain, and stamp ignominy, it seems that it cannot be too explicit in laying down the rules to be observed. To determine whether the criminal laws of this commonwealth answer this description, and whether they admit of any improvement, it seems to be sufficient to refer to the sources to

which it is necessary to resort in order to find them, and the laborious examination by which alone, they can with any probable certainty be ascertained, as already described in the former part of this report.

In proceeding to the performance of the duties of the commission, another material question arose, as to the form in which the code should be prepared, as distinguished from the matter or provisions of which it should consist, for these were prescribed, namely, those of the common law, but they might be framed into codes differing from each other very much in form, and yet embracing substantially the same laws. Upon this question, the commissioners were at the commencement of their labors in much doubt, and they found amongst themselves, very considerable diversity of opinion. It was evidently necessary to settle this question in the outset, since they could not otherwise pursue the work in concert. After long and repeated discussions, it was finally proposed, that each one should attempt the execution of some title, in such form as he might think best. Repeated specimens of this description were successively produced and compared, from which it appeared, that they were gradually converging towards the same plan. In these discussions and tentative specimens, the commissioners had the benefit of the great learning and experience of the former chairman, until he announced to the board, that the state of his health rendered it necessary for him to vacate his place in the commission.

The form subsequently adopted will appear by the annexed specimen, which it is one of the principal objects of the present report to exhibit to the legislature, with the leading reasons for its adoption. The specimen will show that the commissioners do not understand it to have been the intention of the legislature, that they should prepare a digest of the common law like those of Hawkins, East, Russell, and Deacon, nor commentaries after the model of