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Next in importance to religious instruction, as a mean of reformation in the system of solitary confinement, is the perfect ignorance in which each inhabitant of the cell will be kept as to the names, characters, and His crime will be habits of all the other convicts. known only to his friends and to the community, among whom he was convicted. So far as regards the community of rogues around him, he may be for ever ignorant of them and they of him; and thus the great temptation to continue in evil courses will be done away. In the present system of general association, the prisoners know the names, persons, and characters of each other. When discharged from prison, this acquaintance and fellowship are kept up; and if any one has the boldness to shrun his compartion in iniquity, and attempt & virtuous life, he is immediately assailed with strong temptations, or threatened with exposure. A prisoner in our penitentiary who had manifested some contrition for his past life, and had behaved so well as to merit pardon was discharged. Having been again convicted, after a considerable interval, he was asked by one of the inspectors, how it had happened that he had come back, after so fair appearances of amendment. He replied, "I did intend to behave well, and I went to the state of Ohio, where I hoped my former character would be unknown, and I might set out anew in life. I got employment, and was doing well, when unfortunately, I one day met a man, who had been a convict at the same time with myself. I passed him feigning not to know him; he followed me, and said, I know you, and will blow you, so you need not expect to shun me; it is folly to set out to be honest; come with me and take a drink, and we will talk over old affairs. I could not escape from him, my spirits sunk in despair and I went with him. The result you know." This is not a solitary example, many more are known and might be specified. The truth must be evident to all who consider how naturally every one will shun a man who is branded with the name of convict. In the proposed system of punishment, this barrier against reformation is destroyed. The culprit when he leaves his cell and enters the world again, is conscious that no inmate of his prison can ever recognize him, or tempt him by the ties of fellowship, again to stray from virtue. We cannot too strongly press this beneficial effect of solitary confinement upon the deliberate and serious consideration of the members of the senate, for we deem it highly important.

The advantages of solitary confinement are, as we conceive, and as we think we have shown, the following:

First. The young offender is prevented from further moral pollution, while under the sentence of the law, by being kept from association with accomplished villains, whose society would harden him, and render him after the term of his punishment had expired, more desperate and dangerous to society.

Secondly. Innocent persons, if such, owing to the imperfection of human justice, should be unhappily sentenced to its cells, would be saved from corruption and

ruin.

Thirdly. Solitary confinement according to this system is severe, and so much to be dreaded, that it is believed, few will be disposed to make a second trial of its effects.

Fourthly. It presents to all an occasion for private reflection and religious meditation, and affords a reasonable prospect, from the use of these means, of proving beneficial to the prisoner and the public, by his reformation and future amendment of life.

Having thus stated the advantages of the system of punishment which we have proposed, it becomes our duty to notice the objections which have been urged against it, particularly when it is unaccompanied with hard labour. They are the following.

First. It is objected that the system is inhuman and barbarous, producing insanity in some, affecting the bodily health of others; inducing to the commission of sui

cide, and that failure has attended its trial in several of the states.

Secondly. That it disqualifies the prisoner for future exertion and industry, and that it is attended with too great expense.

In support of the first objection it is argued, that man is a social being, that from the very constitution of his nature, social enjoyment is necessary, and that his mind if left entirely to action upon itself, must in time become impaired. The opinions of the Marquis De La Fayette, the early friend of our country, who endured as is well known the horrors of the Austrian dungeon of Olmutz for four years, have been cited by the objectors, as aŭthority to the point in question.

To this statement we reply, it is to be observed, that the dungeons of Olmutz and those of the former Bastile of France, and of the other state prisons of European tyranny, differ much in their modes of construction and regulation, from the cells of our penitentiary; and the persons who are to suffer under the Pennsylvania system are not the victims of oppression, the martyrs in the cause of liberty and virtue, whom despotic tyranny, to secure its own political existence, crushes and buries in living graves.

The cells of the eastern penitentiary are eight feet wide by twelve feet long, with arched ceilings, the apex of which is sixteen feet from the floor. Each cell communicates by an iron and wooden door with a yard eight feet by twenty, in which it is proposed that the prisoner shall exercise himself one hour every day, except on Sunday. The cells are well lighted and ventilated, but so constructed, as to prevent the prisoner from holding any communication with the inmate of an adjoining cell, and yet so as to afford every needful comfort. His diet is not intended to be bread and water only, but such food as will sustain his health and strength. Strict attention to cleanliness of his person and cell, will be required, and he will be provided with adequate clothing. In one word, it is believed that a system of solitary confinement can be enforced in the eastern penitentiary, in such a manner as shall comport with the humanity of our institutions, and the feelings of an enlightened community, unless it be deemed barbarous and inhuman to place a criminal in circumstances fitted to lead him to consider his ways and to bring him to repentance. In the plan of the eastern penitentiary the health, security and entire seclusion of the culprit are considered.

In fact, so far is this system from being regarded as too severe, that it is feared by some who are acquainted with its operation, and who have had much knowledge of the characters of old and accomplished offenders, that even it will be found insufficient to deter them from

crime.

But this supposed defect of the system is not perceiv ed by us, since its good design is to produce, by means of sufferings principally acting on the mind and accom panied with moral and religious instruction, a disposition to virtuous conduct, the only sure preventive of crime; and where this beneficial effect does not follow, to impress so great a dread and terror, as to deter the offender from the commission of crime in the state where the system of solitary confinement exists:

Many erroneous apprehensions we believe have arisen in the minds of some of our fellow citizens, respecting the undue severity of this system, from not considering the character of those who are to be inhabitants of the cells. They will not be men of unblemished virtue, of moral habits, of high and honourable spirits, whose sensibilities are keenly alive. The subjects of this system of punishment will be generally criminals of degraded and vicious characters. In general (although to this as to every other rule there are exceptions) the progress of the mind in vice is gradual, and with every new offence there is a corresponding deterioration. It very rarely happens that any one is imprisoned for his aberration from rectitude. The uniform history of those unhappy men, exhibits them engaged in a course of pr

1828.]

PENAL CODE:

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vate pilfering or impure conduct, before they commit | can learn, no instruction either religious or of any other any open or flagrant violation of the laws. Intemperate habits and dissolute society have so contaminated their hearts, that the finer affections are in a great measure eradicated and every pure and virtuous disposition of the prisoner is destroyed or greatly impaired.

Many have been brought up from infancy ignorant of all intellectual and religious culture, accustomed to the rudest and lowest class of associates, or have led a wandering life for so many years as to have lost almost the distinctive features of humanity. Every considerate man who inspects these delineations of character will not recognise in them, the lineaments of those unfortunate state prisoners, whom a cruel policy has torn from country, friends and family, and with every capacity for virtuous enjoyment unimpaired, immured in dungeons.

There can be no comparison between the subjects of penitentiary discipline, and those to whom the Marquis De La Fayette refers, upon whom solitary confinement produces such terrible effects.

It is also said, that in consequence of its bad effects upon the mental and bodily health of the convict, the system of solitary confinement, has failed and has been abandoned in every state in which the experiment has been made.

This objection has been distinctly brought before the public, in the second annual report of the prison discipline society of Boston, published June 1, 1827. The respectable and intelligent secretary and agent of that society, who has visited most of the prisons in the United States, and has collected a considerable mass of information, in relation to prisons and prison discipline, is reputed to be the author of this report, and his remarks are therefore entitled to deliberate notice.

It is stated in this report, that solitary confinement by day and by night, has failed of success in Maine, in New York, and in New Jersey, the states in which it has been tried. In answer we assert, that solitary confinement has never been fairly and properly tried, upon the principles, and in the manner, which it is proposed to adopt

in this state.

kind was afforded. The system of solitary confinement has been abandoned and hard labour with all the evils of unrestrained intercourse has been substituted. The religious instruction they now receive, is one short sermon on the Sabbath.

In the prison at Auburn, New York, the cells are seven feet long, 7 feet high, and 34 feet wide. The only opening from the cell, except the ventilator, is the door, at the upper end of which, is an iron grate about 18 by 20 inches. The bars of this grate are round, over three fourths of an inch in diamater, placed about two inches asunder, leaving spaces smaller than a man's hand. Through this grate, all the light, heat, and air, are admitted to the cell. These cells are five stories in heighth. with galleries, built inside of the north wing of the pri son having an area around the cells, ten feet wide, of which 3 feet adjoining the cells, are occupied by the galleries. The experiment of solitary confinement by day and by night, was made in these cells, in the year 1822 form ten months; upon 80 convicts of the oldest and most heinous offenders. Their food was course, but nutritious, they had no exercise except what a space of 3 feet 6 inches by 7 feet would afford, no change of air; and no religious instruction while in their cells. They were left to suffer and become desperate. Their keeper was Captain Lynds, now of the Sing Sing prison. The result of the experiment was unfavourable, says the reporter just quoted. "It was found in many instances, to injure the health, to impair the reason, to endanger the life, to leave the men enfeebled and unable to work when they left the prison-as ignorant of any useful business as when they were first committed." The present keeper of that prison says, "that a number of these convicts became insane while in solitude-one so desderate, that he sprang from his cell, when his door was opened and threw himself from the fourth gallery upon the pavement, which nearly killed him and undoubtedly would have destroyed his life instantly had not an intervening stove pipe broken the force of his fall: another beat and mangled his head against the wall of his cell, until he destroyed one of his eyes." We give these extracts, as the evidence of those who say that solitary con

In the first place, the cells in the prisons of those states were not judiciously constructed. In our state-finement by day and night is inoperative and cruel; and ments on this point, we quote from the work just mentioned, and from the brief notices of Auburn prison, published by the keeper.

we have no doubt that such results would occur where the mode of punishment was enforced in the manner adopted at Maine and at Auburn. These unfortunate men were shut up in small cages, without the benefit of exercise or pure air; were deprived of religious instruction; and from the character of the institution at those periods, and the mode of making the experiment, the voice of kindness and compassion seldom or never reached their ears.

In Maine, the night rooms or cells, are pits, entered from the top, with a small ladder, through an orifice about two feet square. The ladder is removed when the convicts are in the cells. The opening is secured by an iron grate, used as a trap door. The only other orifices in the cell, are one in the bottom, about an inch and a half in diameter, to admit warm air from under- As to the effect of this experiment at Auburn, it is neath, which is heated by a furnace; and another in the further to be remarked, as Mr. Powers candidly states, side of the cell, about one and a half by eight inches, "that in forming the class on whom the experiment was having an angle in the wall, to prevent the convict from to be made, the worst men were selected, from the best seeing any person without. The cells are 8 feet 9 inch-information we had of them;" and the act of Assembly es long; 4 feet 6 inches wide, and 9 feet 8 inches high. | passed by the legislature of New York, April 2, 1821, These cells are very gloomy and communication is very difficult though not impossible.

The diet was very low, viz. a pound of bread and cold water only, per diem. In this report, we have an account of one man who was only four days in his cell, who hung himself, and of another, who was in his cell 24 days and who cut his throat, the sentence of the one being only 70 days solitary confinement and that of the other 60 days. The names of four others are given, who were in solitary confinement, and who being unable to endure it were removed to the hospital, and then to the cells, alternating between the cells and the hospital, thus filling up the period of their sentence, the longest term of which was six months.

Four others endured their whole sentence without leaving the cell, some four and some three months. The prisoner had no other mode of exercise, than was afforded by the dimensions of his room, and so far as we No. 17.

directs the inspectors, "to select a class of convicts, to be composed of the oldest and most heinous offenders," It is not a matter of wonder therefore, that few. if any, of this class were reformed, as no pains were taken to impress moral or religious truths upon their minds; and that many, if not most of them, were re-convicted. One individual of this class, who suffered severely in health while in the cells, was discharged on the expiration of his sentence, and immediately engaged in a course of daring villainy, and was re-convicted and sent to the N. York prison; but it is proper to state that he had twice before been sentenced to the New York prison. Had the inspectors been authorized to select a class of men from among those convicted for the first time, had they placed them in comfortable apartments, afforded them the benefit of pure air and exercise, secluded them from all society but that of a benevolent and pious instructor, whose visits should have been judiciously made; and had the experiment then failed in producing reformation, in

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A recent instance of the inefficiency of this part of the penitentiary system, to produce reformation, has lately occured iu Kentucky; and, as it is in perfect accordance with numerous instances in our penitentiary, we shall

a majority of cases, the result would have been entitled to great consideration and respect. But such an experiment has never been fairly made, and it remains for the state of Pennsylvania, the first to introduce the penitentiary system, to be the first to make the only true refor-state it. mation in it, that which is founded on the principles of The Kentucky Reporter, cites the following case, as "The christian morality and the influence of the gospel. having occurred in the penitentiary of that state. It has now, we trust, been clearly shown, that the ex-time of service of an excellent blacksmith lately expired, periment made at Maine and Auburn, was not properly made, in order fully to test the effect of punishment by solitary imprisonment; nor do we think it was properly conducted at New Jersey, where it is also said to have failed.

the keeper was desirous of retaining him on account of
his mechanical skill, and offered him 50 or 60 dollars a
month, which he refused. He had been but a short
time absent, (perhaps only a few days) before he stole a
horse for which he has been tried, and again sentenced,
so that he has resumed his station without wages."
It is true, that the prisoner while enduring the punish-
to work may for a season be impaired; yet if his mind is
thereby brought to a sound state of morality, and his dis-
position becomes favourable to industry and virtue, he
returns to the bosom of society better fitted to be useful
to himself and to the community in which he may dwell.
If the will be favourable, the man will soon become ac-
tive and industrious. If that is averse to good, it matters
not, that he has been trained by compulsion to the most
industrious course of life; he will abandon it whenever
he has the power.

In that state, the experiment has been made for about four years upon an average number af 12 convicts, for a period of from 18 months to two years without intermis-ment we recommend will be unemployed and his ability sion. But it is to be remarked, that although the convicts are in separate cells, yet several of them can converse as freely as if they were in the same cell; and therefore, to use the language of the report of the prison discipline society of Boston, "it is to be regarded as no farther an experiment on solitary confinement day and night, than as keeping the men from seeing or coming in contact with each other, but not from evil communication and corrupt society." In support of this position we mention the remarks made by a young convict, who was imprisoned in one of these cells on his first offence, The expense to the state of maintaining such a system, but who was afterwards a convict in the Philadelphia is also urged as an objection. On the point of expense, prison. He stated to a member of the committee that much has been said and published, and comparisons the impressions made upon his mind by solitary confine-have been drawn between different prisons in the Unitment were for a season very salutary. He was a young ed States. There are but three prisons in the United man of education, who had received in early life the be-States within our knowledge, in which prisoners by their nefits of pious instruction, and who by the death of his labour produce a sum equal to the expense of the estabfather acquired some money which proved the cause of lishment, viz. those of New-Hampshire, Vermont and his ruin. When left to reflection in his cell, he consi- Massachusetts. The number of prisoners in the first dered his ways. For a time, his conscience was tender, two is usually small, viz. sixty nine in the first, and one and he formed the resolution to lead a better life. All hundred in the second. Their officers are few in numthese good resolutions and this sensibility were however ber and their salaries small, added to which the prices destroyed, by a prisoner in the adjacent cell, who ridi- of provisions are low, amd their location is healthy. culed his religious notions, and by constant poisonous suggestions, destroyed the sentiments of virtue, which had just begun to appear. Yet it should be noticed, that according to the testimony of the keeper of the N. Jersey prison, there have not been any recommitments of those who have suffered solitary confinement; and the cells have not proved permanently injurious to health or

reason.

In Massachusetts the number of prisoners by the last report was 313. This prison produces to the Commonwealth a profit of from 8 to 10,000 dollars per annum, and it is held forth as a model to prove that, where hard labour is the business of the convicts, they can be made to support the institution. The convicts in the prisons at Auburn, in the city of New-York, in New-Jer sey, in Philadelphia and in Richmond, where hard la2. It is further alleged, as an objection to solitary con-bour is the business of the convicts, are not able to profinement, that it disqualifies the prisoner from future in- duce such a result; the fact is, that the prison in Massadustry and exertion, and that it is too expensive to the chusetts is not conducted on more economical principles state. These objections, at first sight, appear plausible than the other prisons; but it happens, fortunately for and important; but we believe when carefully examined that prison, as well as for that in New-Hampshire, that they will cease to be regarded. It was a favourite no-they are enabled to procure granite suitable for building, tion with the framers of our present penal code, that which they prepare for sale, and which is sold to great depraved men could be reformed by habits of industry, profit. For example: it costs the Massachusetts prison acquired in prison; and that, as many of them would for the year ending 1826, for roughstone, steel, coal, & learn trades during their confinement, and thus have the $20,629 05; and they disposed of the article when ma means of obtaining an honest support when released,nufactured for $49,717 78, profit $29,088 73. So grest they would afterwards cease from a vicious course of is the profit of this branch of business, that the proceeds life. Experience has proved the fallacy of this opinion. of labour in the stone department of about one third of In a large majority of cases, those who are the most in- the men, was more than sufficient to cover the expenses dustrious while in prison, are among the most depraved for provisions, clothing, bedding and salary of the offi and daring offenders when set at liberty; and the simple cers for the whole establishment." reason is, that wicked men do not love to work, and will If the prisons which are not able to support themselves not work unless compelled. We do not, however, pre- are examined, it will be found not to arise from want of tend to assert, that there have not been instances where economy or industry, but from want of suitable and promen have been in prison and there acquired the know-fitable employment; this is peculiarly the case with the ledge of a trade or business, who have not afterwards penitentiary in this city, and to a certain extent, with pursued an honest and industrious life; but we believe that at Auburn. that their reformation was effected by other causes than mere industry. The motives to a virtuous course of life must first be implanted in the mind, before good results can be expected. Evil habits, the love of idlenes, and vicious society operate so powerfully on the mind of the Now it is to be considered that a man who is confined prisoner, as soon as he is discharged, that he immediate-in a solitary cell without labour, needs not the same Îy returns to his former practices. It is hard for him, quantity of food or clothing, as he who is engaged in lawho has been accustomed to do evil, to learn to do well. I borious employment; two meals a day will be abundant,

In Massachusetts, in 1826, the annual expense of supporting a prisoner including salaries and all expenses, was 89 dollars; at Auburn 83 dollars; at Philadelphia 82 dollars; at Baltimore 80 dollars.

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and one half of the quantity of clothes given to a labouring man will suffice.

As many keepers will not be needed, where prisoners are constantly confined, as where they are at liberty, it is confidently believed that the expense of each prisoner will not exceed 25 dollars per annum for his provision and clothing, to which is to be added his proportion of the salaries, and other expenses of the prison at 25 dollars, making in all 50 dollars per annum. The average cost of prisoners to the counties of the state, deducting the profits of their labour in the Philadelphia prison is about 30 dollars per annum. In Auburn, the cost to the state by the last report, was about 25 dollars per annum for each prisoner, making the same deduction. If then one third of the usual time of punishment now inflicted, be that which shall be fixed, as the term of punishment by solitary confinement, and it is believed that such a limit will prove more efficient, the expense to the counties, if they have to pay for their prisoners, will be less than under the present system; as thus:

A criminal convicted of larceny and sentenced for 3 years, now costs the county to which he belongs thirty dollars per annum, and sometimes more-but say 30 dollars $90 00

If sentenced for one year to solitary confinement he will cost $50

50 00

$40 00

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cation of the laws of the United States during the first session of the 19th Congress, and requesting him to copy the same as they should be published in the National Journal at Washington; fixing at the same time the rate of compensation, viz. one dollar a page of the printed pamphlet, published by order of the Secretary of State at the end of the session.*

The constitution of Pennsylvania Art. 2. Sec. 8. declares that no member of Congress from this state, nor any person holding or exercising any office of trust or profit under the United States, shall, at the same time, hold or exercise any office in this state, to which a salary is by law annexed, or any other office which future legislatures shall declare incompatible with offices or appointments under the United States.

Accordingly an act was passed the 12th of February 1802, entitled “An act declaring the holding of offices or appointments under this state incompatible with the holding or exercising offices or appointments under the United States," the first section of which declares that "Every person who shall hold any office or appointment of profit, or trust, under the government of the U. States, whether a commissioned officer or otherwise, a subordinate officer or agent, who is or shall be employed under the legislative, executive, or judiciary departments of the United States, and also every member of Congress, is hereby declared to be incapable of holding or exercising at the same time, the office or appointment of justice of the peace, mayor, recorder, burgess or alderman of any city, corporate town, or borough, resident physician of the lazaretto, constable, judge, inspector, or clerk of election, under this commonwealth." The second section declares the state commission null and void on the acceptance of any office or appointment under the United States, and the third section imposes a fine upon any one exercising any offices or appointments by this act declared incompatible. By a supplement to this act passed the 5th of March, 1812, litary confinement be equal, or even greater, than un- fice or appointment under the United States, is extendthe disability incurred by holding or exercising any ofder the present system, yet we trust, if the benefits are such as we have ascribed to it, that the state of Pennsyl-ed to the offices of clerk of the court of Quarter Sesvania will not hesitate to adopt a system so consistent sions, clerk of the Orphans' court, and Deputy Surveyor, under this commonwealth.

Nett gain

$540 00

If sentenced for murder-18 years
He now costs $540

By solitary imprisonment 6 years it
will be

300 00

Nett gain $240 00

The above statements are made from actual data, and we believe are correct; but should the expence by so

with the real interests of her citizens.

The commissioners have now exhibited in as summary By an act of Congress passed 11th May, 1820, it is a manner as the nature of the subject will permit the provided that "The Secretary of State shall, as soon as evils of the present penitentiary system, the nature and conveniently may be, after he shall receive any order, advantage of unremitted solitary confinement connected resolution or law passed by Congress (except such as with moral and religious instruction; and have endea- are of a private nature) cause the same to be published voured to show that the objections which have been the District of Columbia, and in not more than three in a number of public newspapers, not exceeding one in raised against this system, are not such as should pre-newspapers in each of the several States and Territories vent a failure of it in Pennsylvania.

(To be continued.)

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This was a rule to show cause why an information in the nature of a quo warranto should not be filed against John Binns, Esq. for acting as Alderman of the city of Philadelphia, on the ground that he held an appointment under the government of the United States incompatible with that of alderman. The case was argued last term by Swift, Kittera and Rawle for the relator, and Pettit and J. R. Ingersoll for the defendant, and was now re-argued by the same counsel by direction of the

court.

On the 2d of Dec. 1822, Mr. Binns was commissioned by the Governor of Pennsylvania, an Alderman of the city of Philadelphia, he being at that time, and still continuing, editor of the newspaper entitled "The Democratic Press." On the 13th of Nov. 1825, Mr. Clay, Secretary of State for the United States, addressed a letter to the "Editor of the Democratic Press," informing him that his paper had been selected for the publi

of the United States."

By a previous act, passed April 20, 1813, the Secretary of State was directed to publish at the close of every session of Congress 11,000 copies of the acts of Congress during that session, at large, in a pamphlet form; and by another section of this act it is provided, that the proprietor of every newspaper in which the laws, &c. shall be published, shall receive as full compensation therefor at the rate of one dollar for each printed page of the laws, &c. as published in the pamphlet form, deduction to be made for unreasonable delay or intentional omission: and in any such case (of unreasonable delay or intentional omission) it shall be the duty of the Secretary of State to discontinue the publication of the laws in the newspaper belonging to such proprietor, and such newspaper shall in no event be again authorised, nor shall the proprietor thereof be again employed to publish the laws of the United States.

The circular letter addressed by the Secretary of State to the "Editor of the Democratic Press," after

On the 7th of Dec. 1826, a similar letter was addressed by the Secretary of State to the editor of the Democratic Press, directing the publication of the laws of the United States, passed during these two sessions, were accordingly published in the said newspaper.

order of any department of government, would make a man an officer, incapable of holding a state appointment, This would hardly be contended for; and yet, if he could publish one advertisement, he may publish any number, by contract, as in this case, without being an officer,

informing him that hus paper had been selected for the dent's house, carrying the mail a few miles, or, in the publication of the laws, says "The editors of the Na-case of a printer, publishing a single advertisement by tional Journal will be requested to forward to you copies of such numbers of their paper as may contain the orders, &c. in question; and that you may the more easily distinguish those which, under this appointment, are intended for publication, the editors of that paper have been instructed to add to the usual words, By Authority,' the words 'Public Acts,' and it is such orders, &c. The arrangement was a mere contract, not an office; and as may appear under this additional head, and none the laws of this state, which allow Mr. Binns to be a others, that you are authorised to insert in your news-printer at the same time that he is an alderman, will propaper during the publication of the laws, you will for-tect him in the enjoyment of the natural incidents of his ward your newspaper regularly to the Department of occupation. The acts merely direct the publication of State. It has been usual for the publishers of the Acts the laws in certain newspapers, and the secretary informs of Congress to furnish the Department with their respec- "the editor of the Democratic Press" that his paper has tive papers for the entire year, and it is expected that, been selected for this purpose. The letter offers a cerunder the present appointment, you will conform to the tain compensation for certain services to be performed, custom." "Should the newspaper be sold or transfer- which, when agreed to by the person addressed, conred, or its title changed, you will notify the Department, stitutes a contract for the object in view, but creates no and accompany your notification with a brief written office whatever. Every employment is not an office, and specification of the person to whom the compensation is wherever the arrangement is in the nature of a contract, to be paid, the object of this Department being to ob- there it is an employment, but not an office. viate any doubt as to those entitled to that compensation."

But if there was any doubt, the defendant was entitled to the benefit of it. The act of 1802 is highly penal in its character: the third section imposes a fine upon persons guilty of its violation; and the attempt here was to deprive the defendant of his office, which was certainly a penalty. The information in nature of quo warranto is properly a criminal method of proceeding, and the rules applicable to such proceedings, are to be brought to bear upon it. If therefore there was a reasonable doubt, and the defendant, after a fair exercise of his judgment had not been able to ascertain the meaning of the legis lature, he was not to be deemed a culprit for not understanding what the law had left ambiguous.

For the Defendant, it was argued that Mr. Binns did not hold an office or appointment under the United States, within the meaning of the Act of Assembly. That the incompatibility is confined to offices and appointments, properly so called, and that the additional words, "whether a commissioned officer or otherwise, a subordinate officer or agent," were not to be considered as extending the situations which are interdicted beyond "offices and appointments," though certainly giving to them a very comprehensive character. This was apparent, first, from the section of the Constitution on which the law was founded, which merely uses the words "of- For the relator it was agreed that this was not an infices or appointments," without any supplementary dictment calling for a strict construction of a penal staphrase; second, from the title of the Act. It is—" An Act tute, but merely a civil proceeding, in which the court declaring the holding of offices or appointments under were to give a fair construction to the act of Assembly. this state incompatible with the holding or exercising The only question for the court to determine was, wheany offices or appointments under the United States." ther this was an office or appointment of trust or profit Third, from the mode in which the supplemental words under the government of the United States? The intenare introduced, parenthetically, and merely to prevent tion of the legislature in passing the act of 1802 evidentthe terms first used from being confined to particularly was to keep the state offices enumerated, free from officers; and the word agent, which is used, did not vary this interpretation, it being a technical word applied to certain officers not holding commissions, but regular permanent appointments; and fourth, from the fact that the supplement to this Act, passed March 6, 1812, uses the words "any office or appointment," without the additional explanatory phrase. Such being the meaning of these words, it would be difficult to reconcile with the situation of printer, either to a public or private institution, or individual, the idea of office, or even appointment, if that be a less technical term.

Upon an examination of the acts of Congress which give rise to this employment, it would be found that no personal trust is comtemplated; the newspaper is spoken of as a means of conveying information, exactly in the same way as if it had been a sign post or a telegraph. The proprietor of the paper is mentioned merely for the purpose of designating the person who is to receive the compensation; and if there is any thing in the circular letter of the Secretary of State which seems to consider this employment as an office or appointment, it is without authority of the law, and therefore not to operate to the injury of the defendant.

Again, if this be an office, it follows that the law allows the sale of offices. Provision is made in the circular for the case of the newspaper being transferred or sold, in which event the employment follows the ownership, and the compensation is to be paid to the purchaser. This would not be a mere substitution of a deputy, which is necessarily allowed in some offices, but an actual sale of the office, which the law can never tolerate. If publishing the laws will constitute a man an officer, so will any other service however small; furnishing the Presi

all influence of the general government, and for this purpose they have used the plainest and the broadest terms: "Every person who shall hold any office or appointment of profit or trust under the government of the U. States, whether a commissioned officer or otherwise, a subordinate officer or agent," &c. Nothing could express this intention more clearly. If therefore the defendant held an appointment of profit, it was enough to bring him within the provisions of the law. That the situation of printer of the laws was an appointment was evident from its own nature and the manner in which it was considered by Congress and by the Secretary of State. It was a permanent office, created to last during the session of congress, in which time certain public duties were to be performed, for which compensation was to be received. Congress so considered it in imposing the penalty of perpetual disqualification of future employment on the proprietor who should neglect his duty: and the Secretary of State twice in his letter or commission calls it an appointment. As to its being a contract, every office is a contract in which the person appointed engages to perform the duties of his office. And as to its being an employment of the newspaper and not of the individual, it was in vain to talk of employing an inanimate object to perform the duties prescribed by the act of Congress, and the letter of the Secretary. It must be a person, and Mr. Binns, as the editor of the Democratic Press, received the appointment and the compensation. He was at least an agent of the government, for the purpose of communicating intelligence to the public, and as such, within the meaning of the act of 1802, As to Mr. Binns' right to the enjoyment of the natural incidents of his profession, they replied, that as printer he might

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