[$ 2 to 6. Same as § 4 to 8 R. S.] Original note to § 6. "§ 4, 2 R. L., 30, varied to conform to its supposed intent." [S 9. Same as § 11 R. S.] Original note. "Warrants of attorney are expressly abolished, Chap. 6, 3d Part. Plaints are wholly unnecessary; as are precipes; and venires are abolished in Chap. 7, 3d Part." [S 10. Same as § 12 R. S.] Original note. "Founded on 2 Cowen, 584." [S 11, 12. Same as § 13, 14 R. S.] Original note to § 12. "A general rule, to embrace many special provisions and some omitted cases, see 2 Cowen, 584." [S 13, 14. Same as § 15, 16 R. S.]. Original note to § 14. "As the court of exchequer is intended to be abolished, this provision becomes necessary." 66 [S 15. Same as § 17 R. S.] Original note. "§ 3, 2 R. L., 30, extended, and the amount of the fee reduced one half." "TITLE V. Of the taxation of costs." IS 2. As reported; enacted with alterations § 2 R. S.] Original note. "New; to give effect to the previous section, which is a dead letter without this or some other provision." [S 4. Same as enacted, except that the words "and necessary postage and searches," were added by the legislature.] Original note. "The two last sections are new; they are proposed to enable attornies and clients to know what is proper to charge and to ensure uniformity." 66 [$ 5. Same as enacted, except that the words "or for services rendered in any proceeding authorized by law," were inserted by the legislature.] Original note. “§ 9, act of 1818, p. 280, extended to double pleas, and requiring the officer to strike out useless matter, whether the taxation be opposed or not." [S 6. Same as enacted.] Original note. "New; necessary to carry out former provisions." [S 7. Substantially same as enacted § 7 R. S.] Original note. "Present rule of supreme court, as to witnesses, extended to counsel, in preference to their certificate; and to copies and exemplifications, in conformity to 2 Cowen, 584, and to disbursements." [S 8. Same as enacted.] Original note. "Founded on provision in § 17, R. L., 345, extended to all cases." PART IV. "CHAPTER I." "OF CRIMES AND THEIR PUNISHMENT." Preliminary note accompanying the Chapter. "The assigning of proportionate punishments to different offences, is from its very nature, somewhat arbitrary, and therefore a subject on which the most enlightened differ. One leading principle has in fluenced the Revisers; it is, to regard the moral depravity of the offences, carefully separating those which unequivocally denote deliberate villany, from those which may be the result of momentary indiscretion or ignorance. They have also been guided by another principle; to protect that species of property, or of written evidence of property, in which the public at large are most deeply interested, by heavier penalties, than in other cases. They do not believe that undue severity of punishment, ever has restrained, or ever will restrain, the offender, any more than an adequate and justly apportioned penalty; while they are confident that it generally defeats its own purpose, by producing a reluctance to prosecute and an unwillingness to convict. In their view, the certainty of punishment, is far more important to society, than its degree. That certainty is more likely to be attained, by prescribing a moderate degree of punishment, than in any other way. Upon these principles their distribution of punishments has been made. Our present statutes subject a great number of offences to imprisonment for life, either absolutely or in the discretion of the court. It is conceived that many advantages will attend a reduction of the duration of imprisonment. There will be present to the mind of a convict, some ray of hope, some period when he will again mingle with society, and for which, if there be any effect whatever in the penitentiary system, he will desire to prepare himself. It is conceived that this hope will be more effectual, than the indefinite and vague expectations of pardon. Upon the injured, who ought to become complainants, and upon jurors, the effect of limited punishment, it is believed will be salutary. Besides, on referring to the lists of prisoners sent to the state prisons, it will be found, that the courts have generally sentenced convicts for about the periods in this Chapter assigned to the different degrees of crime. This furnishes a safe practical rule, which has guided the Revisers. "It will be perceived that imprisonment in the state prison for two years, is prescribed in some cases. We learn from one of the keepers of our prisons, that there will be no difficulty experienced by receiving convicts for that term, and that at Mount-Pleasant they can be usefully employed. It is believed the same remark is applicable to the prison at Auburn. It seemed indispensable to allow imprisonment for such a term, in a large class of cases, which are now punishable by confinement in a county jail for a term not exceeding three years. The condition of those jails, and their total unfitness for such a confinement, must be known to every member of the legislature. If the prisoner is secluded in a solitary cell the punishment is more severe than imprisonment for double the term in a state prison. If he is not secluded, he corrupts, or becomes more corrupted; he cannot be employed in useful labor, and he remains an expense to the county. Impressed by these and various other considerations, the Revisers have supposed that no imprisonment in a county jail should exceed one year. It is believed that in most cases, this is more severe than the same term in a state prison. If the offence be such as to justify greater severity, a discretion is allowed to the courts, to imprison in a state prison for two years. Between the alternatives, of an imprisonment in a county jail more than one year, and allowing a confine ment in a state prison two years, there appears no reason for hesitation. "From the communications of well informed persons, we learn that the average duration of human life in a state prison does not exceed fourteen years. Upon this fact, imprisonment has been arranged, so that it shall not exceed that term, in cases where it is intended to be for any period less than life. This has furnished a measure by which to graduate the punishment of inferior offences, and they have been classed accordingly." "TITLE I.— Of crimes punishable with death." [S 1. Same as enacted.] Original note. "§ 1, 1 R. L. 407, omitting attainted, as by § 10, of Article 1, of the constitution of the United States, no attainders can now be made." [$ 2. Same as enacted, except the words "by open and armed opposition to the laws thereof, or to the execution of such laws," recommended by the Revisers, and inserted by them before the word "or," in the 1st subdivision of the section, omitted by the legislature.] Original note. "§ 1, 1 R. L. 145, varied in form, but not in substance, so as to conform to the exposition given by the supreme court in 11 J. Rep. 552. In the Louisiana penal code, prepared by Mr. Livingston, it is declared that no provisions on the subject are deemed necessary, as by the nature of the union between the different states, the levying of war against one state, is a levying of war against the whole, and the constitution of the United States has made that act treason, and vested the cognizance of the crime in the courts of the United States,' part 1, p. 32. The answer to this argument is found in the opinion of our supreme court above referred to, and has been adopted by the Revisers. The preceding section corresponds substantially with the law of Virginia, 1 vol. 591. Most of the other states whose laws have been consulted, retain the ancient provisions which were enacted before the adoption of the federal constitution." [S 3. As reported; materially varied as to personal property.] Original note. "$ 9, 1 R. L., 146, forfeits estates of inheritance and all personal property, absolutely. The spirit of the age is hostile to forfeitures, and the Revisers have preferred the provisions of the 3d section of the 3d Article of the constitution of the United States, to our own laws in this respect, and have incorporated it in the preceding section." [S 4. Same as enacted. See note (1) in the note to the next section.] [S 5. As reported; materially varied.] Original note. "It has been supposed that there was nothing so much wanted in the criminal law, as a settled line of distinction between murder and manslaughter, which are now so nearly connected and run into each other so much, that courts and juries often mistake, and a lamentable uncertainty prevails, which operates as well to screen the guilty as to expose the innocent. The first step to such a distinction is the definition of murder. That given in the preceding section, is compiled from Hale, Hawkins, Foster, Blackstone and East, and from the laws of several of the states. The subsequent references are added to justify the particular parts to which they refer. There is no departure from the present law, except in the case of implied malice, arising from being engaged in an unlawful act. It has been carried to the extent of declaring that if a man commit a riot, and in doing it another is killed, it is murder;' Hale's P. C. 47; and that if A begin a riot which continues for an hour, and then B is killed, by another, (in the same riot,) it will be murder in A;' 1 Salkeld, 334. This principle is adopted by Hawkins in § 51, 52, 53, 54, &c. of Chapter 31, 1st book, although restricted by him to the case of a death occurring strictly in prosecution of the purpose for which the party assembled.' If such death was designed, or bodily harm was intended, or the object of the riot was a felony, it would be included in the above section. If it was accidental, or if bodily harm was not intended, or the object was an offence less than a felony, it would not be included. But such cases will be provided for, under the head of manslaughter. "It is impossible in a note, to present all the considerations which induce the proposed mitigation. The great principle on which the section rests, is this, that to constitute murder, there should be an express design to take life, or such circumstances as to induce a very strong presumption of such a design, or such facts occurring in a transaction, as would ordinarily lead to the result of taking life. proposed section conforms substantially to the law of Pennsylvania. The (1) The means of effecting death, by poison, stabbing, &c. are inserted to include the first and second sections of the present act concerning murder, 1 R. L. 66. The second section, which is the same as the English statute of stabbing, 1 James I, Chapter 8, has not varied the common law in the least, but was merely declaratory of that law; East P. C. 246. Foster, J., in his Treatise on Crown Law, p. 299, considers it not only useless, but mischievous. (2) Hale P. C. 50. (3) Foster, 256. (4) Hawkins, book 1, Chap. 31, § 44, &c. (5) Hale, P. C. 50." [S 11. Same as § 10 R. S.] Original note. "§ 1, 1 R. L. 407, prescribes death for 'wilfully burning any inhabited dwelling-house. The preceding sections declare the time of such burning, the nature of the building burnt, and the fact that it was actually occupied. It is conceived that these circumstances should concur, to authorize a strong presumption of an intention to produce death, and of a strong probability that such might be the consequence. Without such presumption and probability, it is conceived the punishment of death ought not to be inflicted. The 13th section of the state prison act of 1817, p. 315, prescribes death for setting fire to a prison, workshop, &c. This will be mitigated by the preceding sections, as they confine the burning to the night time. The act of 1817 also inflicts death upon a convict committing an assault with intent to murder. It is sufficiently provided for in subsequent sections. "(1) Conformable to Hawk. b. 1, ch. 39, § 70. The offence of burning one's own house, under peculiar circumstances, will be ranked among another class of offences. "(2) Conformable to 2 J. Rep. 105. See also 16 J. Rep. 203; 18 do. 120." [S 13. Same as § 12 R. S. except that the word "sentence," was substituted for "conviction."] Original note. "The present practice on this subject is extremely loose. An entry of the sentence is made in the minutes of the court, and this is the only authority the sheriff has. In many of the states the governor is required to issue the warrant; and in England, no execution of a person convicted at the Old Bailey, takes place without the warrant or order of the crown. It is also deemed useful to provide the time within which the sentence shall be executed." [S 14. Same as § 13 R. S.] Original note. "New: deemed very necessary, to enable the governor to interpose, if occasion should require it." [S 15. Same as § 14 R. S.] [S 16. Same as § 15 R. S. Original note. "New." [S 22, 23. Same as § 21, 22 R. S.] Original note. "The preceding or some other provisions concerning the suspension of executions, seem absolutely necessary. Those stated, are the only cases, where the interference of any other power than that of the governor, can be necessary. "By prolonging the time between sentence and execution, abundant opportunity is given to make any representation to the governor concerning the merits of the case which may be desired. Without expressing an opinion whether the judges or courts possess the power of suspending executions, it is yet deemed an unnecessary power, as the court may suspend judgment in the case of doubt; and is so obviously liable to abuse and conflict with the powers and duties of the executive, that its exercise should be expressly prohibited." [S 24, 25. Same as § 23, 24 R. S.] Original note. "The two last sections are new; possibly such would be the present law; but it is so doubtful, that it is deemed highly important to declare it." [S 26. Same as § 25 R. S.] Original note. "1 R. L. 407." "TITLE II. Of offences against the person, punishable by imprisonment in a state prison. "ARTICLE I-Of manslaughter." Preliminary note. "Manslaughter is an offence peculiar and anomalous. It ranges from excusable homicide up to murder; and as it evinces different degrees of depravity, and is in a greater or less degree obnoxious to the rigor of the law, the punishment should be apportioned to each grade, upon the same principle which prescribes different punishments to different offences. For in fact, the term manslaughter may be regarded as a general term, including offences of every hue. It is not once named or alluded to in our statutes, but is supposed to be included in the present law, under the general terms of any felony other than such as are herein above enumerated and directed to be otherwise punished, and above the degree of petit larceny,' (1 R. L. 409, § 5,) and therefore subject absolutely, in all cases to the punishment of imprisonment in a state prison for at least three years, while the extent of the punishment cannot exceed fourteen years. And yet probably no one who is familiar with trials for murder and manslaughter, has failed to observe, that offences scarcely |