ART. VI. Application de la Theorie de la Legislation Penale, ou Code de la Sureté Publique et Particuliere, fondé sur les regles de la Morale Universelle, sur le droit des gens ou primitif des societés, et sur leur droit particulier, dans l'etat actuel de la civilization; redigé en projet pour les Etats de sa Majesté le Roi de Bavière. Dedié à sa Majesté, et imprimé avec son autorization. Par Scipion Bexon, ancien Avocat, officier du Miniftere public, Commiffaire du Roi, Juge de Paix, Accufateur militaire, Accufateur public, Prefident du Tribunal Criminel de Paris; actuellement Vice-prefident du Tribunal Civil de la même ville; ancien Profeffeur de Legiflation Criminelle à l'Université de Jurifprudence, &c. &c. Folio. pp. 752. Paris, 1807.

W E deem it of great importance to give fome account of this book, while the penal code of our own country remains in a ftate of fuch extreme imperfection, and the community in general feems so indifferent about its amendment.

When a man like Blackstone, in whom education, profeffion, fituation and profpects in life, combined to engender the admiration of whatever was established, and who, in his review of the laws of England, fcarcely ever finds room for any thing but praise

when a man of this description appears the herald of blame, we may fafely conclude that the evil is not only indifputable, but flagrant. This popular author, however, * after obferving that, in proportion to the importance of the criminal law, ought alfo to be the care and attention of the legislature in properly forming and enforcing it; and that it fhould be conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind,' proceeds to tell us, that it has hitherto exifted in all the countries of Europe, and England among the reft, in a very different fituation; for, on the other hand, he adds, either from a want of attention to these principles, in the first concoction of the laws; and adopting, in their ftead, the impetuous dictates of avarice, ambition and revenge; from retaining the difcordant political regulations which fucceffive conquerors or factions have eftablifhed, in the various revolutions of government; from giving a lafting efficacy to fanctions that were intended to be temporary, and made (as Lord Bacon expreffes it) merely upon the fpur of the occafion; or from, laftly, too haftily employing fuch means as are greatly difproportionate to their end, in order to check the progrefs of fome very prevalent offence; from fome, or from all

* See bis Commentaries on the Laws of England, B. iv. ch. 1

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of these causes, it hath happened that the criminal law is, in every country of Europe, more rude and imperfect than the civil. '

This is a remarkable paffage; and deferving of the most profound meditation. It is a defcription, perfectly just, and, as far as it goes, accurate, of the manner in which a great part, not only of the criminal law, but of the whole body of law, civil, criminal and conftitutional, has been built up in every country in Europe. To reason, seriously and fincerely endeavouring to trace out the footsteps of utility, or to difcover the regulations by which the greatest profperity might be fecured to the whole community, nations hitherto have owed very little. It is to the accidental, but in feveral respects unavoidable connexion between the interests of the community, and the interefts of the governing claffes, that the nations of the world owe almost all that is excellent in the actual fyftem of their laws.

Of the defects in our criminal code, Blackftone goes on to fay,* These have chiefly arisen from too fcrupulous an adherence to fome rules of the ancient common law, when the reasons have ceafed upon which those rules were founded.' This, too, is an important obfervation, and one which we should scarcely have expected from the great champion of the wifdom of our anceftors; and one of the great abhorrers of innovation. • Thofe rules, the reasons for which have ceased to exift,' are they all to be discarded? This is rather a sweeping decifion; especially if we include among them, as we plainly fhould, all thofe which never had any reason, or never any but a bad one. Such a propofition in a more modern author, would run fome risk of being reprefented as abfolutely revolutionary and jacobinical. We shall quote but one other paffage from this great English lawyer, before proceeding to the work of his foreign disciple.

After exhibiting fome famples of abfurdity and mischievousness in our criminal laws, and dwelling with lamentation upon the obvious neceffity of amendment, he adds, Were even a committee appointed, but once in an hundred years, to revife the criminal law, it could not have continued to this hour a felony, without benefit of clergy, to be feen for one month in the company of perfons who call themselves, or are called, Egyptians,' &c. &c. With these few but ftriking admonitions, as to the wifdom and the neceflity of looking at home in all our reflections upon fubjects of univerfal importance, we pafs at once to the confideration of the work before us.

The king of Bavaria, like our Edward the First, is a never-ending reformer. During the few months of peace which succeeded

Commentaries, B. iv. ch. 1.

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+ Blackstone's Commentaries on the Laws of England, B. iv. ch. 1.

the treaty of Amiens, the periodical publications of the Contin were filled with the accounts of the plans which he was pursu for the improvement of his government, and for meliorating. condition of his subjects. We find, by the publication before that he has not abandoned the work, even in the season of w that he has not shrunk from a fundamental reform of the cor tion of his people in that cardinal point, on which their condit so eminently depends,—the administration of justice.

The course, too, which he has pursued, is one which, in general bearing, is distinctly traced by the hand of wisdom. looked out for an individval whom reputation designated as e nently fit, and whom particular recommendation, no doubt, si led out as the most fit, to draw up a code of laws; and to 1 he gave a commission to execute the important task. * The co as proposed by the author, was printed and published; that w ever the observations of the people for whom it was designed, of the enlightened men of all Europe, might offer for its impro ment, might be received before it was finally adopted; and not rejected upon such a trial, that it might afterwards be est lished with all the advantages which those means of perfectin could supply. Had the choice of the man, to whom the mary operations were entrusted, been as fortunate as the plan prudent, our present task would have been much easier, more delightful, than it is likely to be.

The work to which our attention is now directed, is inten to exhibit a complete set of penal enactments, and of regulat or enactments of police; together with such elucidations of the neral principles of law, as may show the reasons of the sev enactments proposed, and afford the instruction most necessar estimate justly what has here been performed.

The system of penal enactments, together with such provis as M. Bexon thinks belong to the head of police, he designate the general title of Legislation de la Sureté.' The idea seems to have entertained, that police and penal law fell b and to the exclusion of other branches of law, under this d mination, is the most probable reason that can be assigned for joining the legislation of police with that of crimes and pur ments, as possessing, with each other, a connexion more intin than subsists between either of them and any other branch of and as forming, together, one great and entire department of regulation.

*Not one individual only has undertaken the work. There Projet redigé pour les etats de S. M. le Roi de Bavière, pa Klinschrod.

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An indication is afforded thus early, of what is but too fully confirmed in the sequel,—that M. Bexon's manner of thinking is far too vague, for much improvement in the science of legislation to be expected from his best exertions. Security is not the object of penal laws and laws of police alone. Civil and constitutional laws contribute to it quite as essentially, and, in many instances, as directly, as penal laws themselves. Security is the joint result of the whole system of legislation; and cannot be obtained where any part is wanting or defective. What, for example, would be the security of property, though the penal laws against theft and robbery were ever so perfect, if there were no civil laws to compel the payment of debts, and the performance of contracts? On a distinction thus perfectly inapplicable, it is melancholy to observe the stress which is laid by M. Bexon. He regards it as a discovery of his own making, of the greatest consequence, and as forming one of the most remarkable characteristics of his book. Formerly, nations, he tells us, were too little enlightened to have any just conception of it. Civil laws occupied, to great purpose, their attention; but the great, and still more interesting subject, la legislation de la sureté, n'a guères été, dans l'antiquité, l'objet des méditations des écrivains et de la sollicitude des Gouvernemens.'

I. POLICE.-This, as forming the branch of the subject undertaken by M. Bexon, which in his large volume is first presented to our view, is the part on which we shall first submit our observations. He has traversed the ground with sufficient minuteness; and few, among the particulars which called for his notice, have escaped it; but the sort of eye with which he surveyed it, was that of a man better disposed, than qualified, to find out the improvements capable of being effected in it. A few sentences, or articles, as he calls them, from the commencement of his Code de Police Administrative,' will afford some means of judging of the species of instruction which, on this head, he has afforded us.

ART. I. Definition de la Police Administrative.-La police administrative est instituée pour veiller au maintien de la sureté générale et de la paix publique, à la conservation des personnes et des choses.'

He must have had a very singular conception of what a definition is, who could call this a definition. Administrative police is instituted for the purpose of watching over the maintenance of general security and public peace, over the preservation of persons and things. Now, though this may be perfectly just and true, it is no more a definition of the peculiar functions and

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objects of police, than of any other power or institution in society. The executive power of the King, for example-Is not that also set up for the purpose of watching over the general security and the public peace, and for the preservation of persons and things? Is not the judicative power, in all its branches, instituted for the same purposes? For what is the legislative power appointed, but to watch over the maintenance of the general security and the public peace? Even the military power itself is instituted for no other purpose; by being ever ready to aid in suppressing all enemies, both internal and external, by whom that security may be threatened to be disturbed. Let us try another article.

• L'action de la police administrative précede necessairement celle de la justice: elles sont liées entre elles, consequentes l'un de l'autre, et les contraventions aux reglemens de la première entraînent des peines qui sont prononcées par la seconde.'

This is another piece out of the same mint, and from under the same die ;-puerility, prattle, an identical proposition, or a proposition little better than identical. If the business of police be, as M. Bexon defines it to be, to bring criminals before the judgment seat, and that of judicature to pronounce upon them, how could it happen, but that the one of these operations should precede the other; that they should be connected together; and, as the first precedes the last, so the last must be consequent upon the first? All, however, fortunately is not so bad. The fourth article is as follows.

• Elle ne prononce sur aucune infraction aux lois, mais elle en recherche les auteurs; elle constate les actions defendues, et ressemble les indices et les preuves des faits que sa surveillance n'a pu empêcher.

Here at last, then, we have some tangible distinction brought into view. What the police does not, is, to exercise judicial power. What it does, is, to find out delinquents, take notice of delinquencies, and obtain proofs. So far as these operations extend, and so far as they are left to be performed by police, she is strictly the handmaid of judicial power; and the service which she renders is twofold. 1. Service in securing the person of the delinquent; 2. Service in securing the evidence of his guilt. These two services, however, are part of the general business of criminal procedure, and, strictly speaking, do not belong to police. Criminal tribunals, if properly consituted, would be the best depositaries of all the powers, whether antejudiciary or postjudiciciary, immediately necessary to their own decisions. As matters, however, are still situated all over Europe, we can see convenience and utility in employing the powers established for purposes

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