Encyclopaedia Americana: a popular dictionary of arts, sciences, literature, history, politics and biography, brought down to the present time : including a copious collection of original articles in American biography : on the basis of the seventh edition of the German Conversations-Lexicon (Volume 4).

Date:
1830-33
Catalogue details

Licence: Public Domain Mark

Credit: Encyclopaedia Americana: a popular dictionary of arts, sciences, literature, history, politics and biography, brought down to the present time : including a copious collection of original articles in American biography : on the basis of the seventh edition of the German Conversations-Lexicon (Volume 4). Source: Wellcome Collection.

Provider: This material has been provided by the National Library of Medicine (U.S.), through the Medical Heritage Library. The original may be consulted at the National Library of Medicine (U.S.)

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    stituted by the paities injured. The latter are redressed by the state, acting in its sovereign capacity. The general descrip- tion of private wrongs is, that they com- prehend those injuries which affect the rights and property of the individual, and terminate there ; that of public wrongs or offences is, that they comprehend such acts as injure, not merely individuals, but tlie community at large, by endangering the peace, the comfort, the good order, the policy, and even the existence of socie- ty. The exact boundaries between these classes are not, perhaps, always easy to be discerned, even in theory; for there are few private wrongs which may not and do not exert an influence beyond the individ- ual whom they directly injure. In doubt- ful cases, the legislature usually interferes, and prescribes a positive rule. In clear cases, the right of punishment on the part of the state is assumed as a deduction from natural justice and the duty of the state to protect all its subjects. Hence, in die common law, two classes of offences ai-e distinctly traced out. The first em- braces those which rest upon legislative enactments. The second embraces tliose wliicli, independently of any such enact- ment, are deemed, from tlieir very nature, injuries to the pubhc. The offences be- longing to this last class are not, perhaps, capable of a perfect enumeration; and the test by which they are ascertained is left to the judgment of judges, as cases arise, to be fixed, not according to their own discretion, but by analogy and apprecia- tion of the principles and cases already well settled by former adjudications. When, therefore, a non-enumerated Avi-ong arises, which does not fall under any known former rule, the question which is discussed is, how far it falls under the principles already established respecting jjublic crimes. If reasoning furnishes a strong analogy, it is deemed a public of- fence ; if otherwise, it is left for the legis- lature to declare that it shall be such. Treason, murder, setting fii-e to a dwelling house in a large city, riots disturbing the general peace, ])oisoning public wells, &c., it will lie readily admitted, naturally en- danger the good order and safety of the state, and therefore are properly to be punished by the state. But it is not so easy to trace tlie same principle in mere secret tlicfts, or a private fight, and yet deny its existence in violent seizures of private property, and private quarrels pro- ducing defamation of character. The common law considere the great object of the pubhc punishment of crimes to be the prevention of offences, by deteiring both the offender and others from a repe- tition of the same. Its object is not so much an atonement for, or expiation of^ the offences, as a precaution against their recurrence. This naturally includes, not as a primary motive, but as an incident, the reformation of the criminal himself; for, so far as that is effected, it prevents offences. That system of punishments isi indeed most desirable, which attains its object by such a reformation. But it is obvious, that reformation cannot always be relied upon as a sufficient security for society. Hence arises the necessity or policy of capital punishment, which, by cutting off the offender, not only operates as a tenor to others, but secures society against the possible perpeti-ation of the same offence by him. Undoubtedly it ought never to be resorted to except in cases of atrocious guilt, and where less punishments are manifestly inadequate to produce security. Some persons, indeed, doubt the lawfulness of capital punish- ment altogether; but the divine law has certainly sanctioned it. Others, who do not question its lawfiilncss, doubt or deny its policy. It is certain that the frequency of capital punishment has some tendency to abate its terrore ; and it is by no means as certain that capital punishments have a tendency to prevent the occurrence of the crime, or to secure a conviction. There is a natural repugnance to punish, with so much severity, slight offences; and judges and juries, as well as the public, under such circumstances, lean against prosecu- tions and in favor of acquittals. Hence the probability of conviction is sometimes in l)roportion to the moderation of punish- ments. On the other hand, it is found by experience, that the punishment of death is not sufficient to deter men from the commission of offences to which they are strongly tempted by their passions or their wants.* The tendency of modern legis- lation has, therefore, almost uniformly been in favor of relaxing the severity of the penal code. In England, capital pun- ishments are very extensively provided for by statute. There are more than 160 capital offences in her code. (4 Bl. Comm. 18.) In the U. States, there has been a constant effort to diminish the number of capital offences. There are but 9 in the criminal code of the U. States; and the codes of the respective states do not geiv * Indeed, the severity of the punishment some- times induces the ofTender to become more savaee and atrocious. Thus, where robbery is punisliable with dealli, it is often attended with murder.