Monmouth, Oct. 18th, 1830.
Dear Claiborne,—I
have put off a further reply to your letter of the 25th August with a view to
minute the amendments of which our code is susceptible, as they might occur to
me from time to time; but I have found myself so engrossed by the preparation
of my decrees and opinions for publication, and by other official business,
that I am still, in a measure, unprepared, and must answer you now only in
part.
It will be certain that an amendment to the Constitution
will be necessary in a few years. The acquisition of the Indian territory will
make this imperative, and the only question is, whether the present is a more
suitable time than the period when the actual necessity shall occur. It seems
to me that the absence of political excitement, and the serenity of our
horizon, point out the present as the most suitable moment to careen the ship
of state. Talent will be called to the performance of this duty without regard
to party. We know not how long this quiet atmosphere will continue. Storms may
arise in a few years, by which the scum and dregs of society may be agitated to
the surface, and disturb and destroy the pure element we now enjoy. Let us do,
then, what may be necessary, while we may do it in peace.
The 2d and 3d articles of the compact limiting the number of
judges, and the 9th section of the 3d article limiting the number of
representatives to 36 until our white population amounts to 80,000, and yet
requiring that each county shall have a representative, are incompatible with
the acquisition and organization of new and extensive territory. Even setting
aside the necessity of the matter, policy requires some amendments to the
charter. Our judicial system is exceptionable. The trial of questions in the
last resort should be vested in an independent, impartial, and unprejudiced
tribunal, composed of judges in number sufficient to avoid as well the frailty
or errors of one individual, as the great division of responsibility where
there are too many judges. Three is, in my opinion, the golden number. When a
set of men are called on to decide upon their own errors, we must expect to
find some bias toward former impressions, or a disposition to question the
accuracy of one who has detected a flaw.
I likewise am in favor of biennial sessions of the
Legislature, and some change made to prevent important questions of legislation
from being made subsidiary to the election of a senator or a judge. Our whole
bloody criminal code calls for radical revision. I see no cure for it but
amputation. The limb should be cut off from the body politic, and a scion of
less barbarous growth engrafted thereon. For the many grades of moral turpitude
which are considered proper subjects for the denunciation of the laws, many and
various grades of punishment are required, and the punishment of all crimes,
except, perhaps, those of the deepest dye, should be so inflicted as to leave
room for amendment. It were better to punish with death in all cases than to
brand the culprit with an indelible stigma and turn him loose upon society. Yet
for all the various classes of crime known to our laws, we have but four kinds
of punishment — the whipping-post, the pillory, the hot iron, and halter.
Imprisonment in the common jail is seldom resorted to. When the courts have the
alternative they rarely order imprisonment, owing to its expense to the state.
The prisoner must be supported at considerable cost, while his labor, which,
under a better system, might be profitably employed, is wholly lost. The
penitentiary is the remedy. This would enable us to graduate punishments, and
would be followed by more certainty in the conviction of offenders. Many crimes
of dangerous character — negro stealing and forgery, for example — which are
now capital, go unpunished, in consequence of the disinclination of juries to
find a verdict of guilty. In my opinion, the man who shall succeed in
introducing the penitentiary system in this state will deserve the highest
honor. Were I in search of popularity, I would feel certain of success with
such a subject. It is not a mere experiment. Good management will enable the
system to more than support itself.
Let me urge upon you, by all means, the necessity of a law
to prevent and punish the circulation of incendiary pamphlets, etc., in this
state.
SOURCE: John F. H. Quitman, Life and Correspondence
of John A. Quitman, Volume 1, p. 100-2
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