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the system, and recommend the punishment of solitary imprisonment and hard labour, instead of capital and other sanguinary punishments to the universal approbation of the civilized world.*
• In Philadelphia, in 1829, a further reform in prison discipline was introduced, and is spoken of with high approbation by competent judges. It consists of solitary confinement by night and being separate from associates in gnilt by day, and labour by day. Purdon's Dig. 455. Doctor Lieber in his Letter to the President of the Philadelphia Society for alleviating the miseries of public prisons, and in his Letter to the Governor of South Carolina on the penitentiary system, comes out with great strength in favour of the Philadelphia system in preference to the Auburn plan of disciplineSee also the Lettre sur le systems penitentiaire, par M. Demetz, CounseilXer a la com royals, Paris, 1837, in which the Philadelphia plan of solitude by night and by day is ably enforced; and the system was approved of after full discussion by the Conseil General du DepaHement de la Seine, October 20th, 1837. But notwithstanding all this sanction, it would seem that competent persons of experience have raised a doubt as to the good effects of total and absolute solitary confinement by day and night, in consequence of its deleterious effects upon the body and mind of the prisoner. Doctor Lieber distinguishes the one system as the Auburn or silent system, and the other as the Pennsylvania separate or eremitic system. The Boston Prison Discipline Society has been a strenuous and able advocate of the Auburn or congregate system, in opposition to the Pennsylvania or separate system. On the other hand, Miss D. L. Dix, in her "Remarks on Prisons and Prison Discipline in the United States," 1845, after a thorough review of the penitentiaries in the United States, gives her opinion in favor of the superior efficacy of the separate as distinguished from the congregate system upon the morals of the convicts. The work is written with great good sense and knowledge of facts, and with admirable temper and candor. The Pennsylvania or separate system, by which the convicts are kept separate from each other not only at night, but by day when at hard labour, is the one now prevalent ia Europe, and it has high authorities both in Europe and America in its favour. The plan is seclusion from associates by day, accompanied by manual labour with moral and religious instruction, and with solitary confinement at night. The subject of penal laws is replete with difficulties. It is understood, in England, that transportation as a punishment and discipline has been a failure either as means to deter from crime, or to reform the convicts. In a report made in the English House of Commons in 1838, it was stated that instead of a reforming it had a corrupting influence, and was continually enlarging the
*While the personal security of every citizen is protected from lawless violence by the arm of government and
Australian territories by colonists, most thoroughly depraved as respected both the character and degree of their vicious propensities. If this be so, the grievance was most alarming, for in Great Britain about 5000 persons annually undergo the sentence of transportation. But great and most commendable, and apparently judicious amendments and improvements were made by the British government in 1842, to meliorate the condition of convict discipline in Van-Dieman's Land and Norfolk Island. See the able and interesting Dispatches of Lord Stanley, Secretary of State for the Home Department, to Sir John Franklin, Lientenant Goeernor of Van Dieman's Land, published by order of the House of Commons, April, 1843. It appears that 1000 convicts are sent annually from Great Britain to Norfolk Island in Australia, and the number of convicts resident there is not usually above 3000. That 8000 convicts are employed in labour in Van Dieman's Land. The course of discipline is that every convict is subjected to successive stages of punishment, decreasing in vigor at each successive step, unless the transit to a less severe punishment be withheld owing to misconduct in the convict; (1.) Detention at Norfolk Island four years; (2.) The probationary gang removed to Van Dieman's Land, and kept at labour two years; (3.) The probation passes five years; (4.) Tickets of leave; (5.) Pardons absolute or conditional. Great efforts are made for the melioration of female convicts, and 600 of them annually pass through the penitentiaries.
In the case of wanton and malicious mischief, corporal chastisement seems to be deemed a suitable punishment in whole or in part in the adoption of means to prevent it. Thus for the better protection of works of art, and scientific and literary collections, the statute of 8 & 9 Victoria, ch. 44, declares that such trespassers shall be subjected to six months imprisonment with hard labour, and with the wholesome discipline of one, two, or three whippings.
It appears now, (1847) to be the policy of the British government to qualify or abolish transportation to Australia, or to any British settlement more distant than Gibraltar or the Bermudas, where the hulk system, as it exists at Woolwich is in operation, and to substitute for the present punishment reformatory establishments, or a preparatory period of punishment, and a subsequent system of compulsory labour, and that no released convict shall be permitted to remain thereafter in the United Kingdom. Some modification of that kind has been suggested as a substitute for transportation, though with the preservation of transportation to a qualified degree.
There were, as early as 1834, sixteen of the United States, viz. Maine, New-Hampshire, Vermont, Massachusetts, Conuecticut, New-York, Newthe terrors of the penal code, and while it is equally guarded from unjust and tyrannical proceedings on the part of the government itself, hy the provisions to which we have referred, every person is also entitled to the preventive arm of the magistrate, as a further protection from
Jersey, Pennsylvania, Maryland, Virginia, Kentucky, Tennessee, Georgia, Ohio, Indiana, and Illinois, besides the District of Columbia, which had penitentiaries or state prisons established and supported by government. The system is extending and growing better in this country by the lights of experience, and in 1838 the prisons in eight or nine of the states had become a source of revenue to the publie, as the earnings of the convicts by their labour left a clear gain above all expenses. It has attracted attention in Europe, and gentlemen of character and ability from England, France, and Prussia, have visited the United States, under the auspices of their respective governments, in order to Inspect our prisons, and obtain a thorough knowledge of the plan, discipline, and effects of our penitentiary systems. To these visits we are indebted for the interesting work of M. M. G. de Beaumont et A. de Tocqueville, entitled Du Systems Penitentiaire aux Etats-Unis, et de son application en France, Paris, 1833; and which has been translated with notes, by Doctor Francis Lieber, advantageously known to the literary world as the editor of that great work, the Encyclopedia Americana; also for the Report of William Crawford, Esq., on the Penitentiaries of the United States, presented to the British government, and ordered to be printed, in March, 1835. His appendix to this report contains an extraordinary and very valuable mass of facts and details on the subject, collected with great industry and care, and accompanied with excellent plans of our principal state penitentiaries. The whole work is very instructive, and ought to be republished in this country. The French visitants collected also documentary and statistical matter relative to our state prisons, amounting to six volumes in folio, which have not been published, but were deposited in the office of the minister of commerce and public works at Paris.
Doctor Julins, a learned professor at Berlin, in Prussia, under the direction of his government, visited the United States on the same errand in the years 1834, 1835, and 1836, and in 1839, his work in two volumes on the Moral Condition of the United States was published at Leipsic in Germany, and the second volume was wholly occupied with the subject of crime and punishment.
In 1830, a bill passed the English house of commons abolishing the punishment of death for forging negotiable securities; but this alteration in the established law was rejected by a large majority in the house of lords.
threatened or impending danger; and, on reasonable cause being shown, he may require his adversary to be bound to keep the peace. If violence has been actually offered, the offender is not only liable to be prosecuted and punished on behalf of the state, but he is bound to render to the party aggrieved adequate compensation in damages.*
• The rule or measure of damages, in actions at law, for a compensation for civil injuries to the person, or property, or character, has been recently extensively discussed, and with superior learning, ability! and candour in "A Treatise on the measure of Damages, by Theodore Sedgwick, Esq., New-York, 1847," a work greatly wanted, and which, from its intrinsic merits will recommend itself strongly to the patronage of the profession. The general rule is that if a case be free from fraud, malice, wilful negligence or oppression, the compensation is taken strictly for the real injury or actual pecuniary loss to the party, and perhaps the natural and legal consequences of the act complained of, and the actual costs and expenses sustained. But if fraud, malice, or mala mens mingle in the controversy, the claim goes beyond absolute compensation, and punitive, vindictive, or exemplary damages by way of punishment and for example's sake, seem to be admitted in the jurisprudence of England and of this country. This Mr. Sedgwick has shown by numerous cases from 2 Wils. 205. 3 Ib. 18. 13 Meeson <J- W. 47. 1 Washington C. C. U. S. R. 152. 3 Johnson R. 56, 54. 14 Id. 352. 2 Mason R. 120. 10 JV. H. R. 130. 15 Conn. R. 225, 267. Story, J. 3 Wheaton, 546. Baldwin J. 1 Baldwin R. 138. Thelearned author of the treatise further shows that in the Scotch courts the rule of absolute compensation for civil injuries is adhered to without converting the suit into a matter of punishment, or going beyond compensatory damages; and this seems to be the sounder rule in the opinion of Mr. Metcalf and Professor Greenleaf, the eminent jurists to whom Mr. Sedgwick refers, while he frankly gives his own reasons for what he deems the better conclusion in the English and American law. It follows necessarily that, except in matters of contract, the amount of damages when bad passions or motives are intermixed, must be left to the sound discretion of a jury, to be exercised according to the circumstances, and under the wise superintendence of the court. See Measure of Damages by Sedgwick, p. 27-46, p. 75, 76, and ch. 3, and ch. 18 of that treatise. But in cases of loss without aggravation or intentional wrong, the law confines itself to a complete indemnity without adding exemplary damages, or estimated profits, or remote consequences. 2 Dallas, 333. 2 Wheaton, 327. 3 Id. 546. 17 Pick. 543. 2 Taunt. 314. 23 Wendell, 425. Sedgwick's Treatise, p. 88-03. The municipal law of our own, as well as of every other country, has likewise left with individuals the exercise of the natural right of self-defence, in all those cases in which the law is either too slow or too feeble to stay the hand of violence.* Homicide is justifiable in every case in which it is rendered necessary in self-defence, against the person who comes to commit a known felony with force against one's person, or habitation, or against the person of those who stand in near domestic relations.0 The right of self-defence in these cases is founded on the law of nature, and is not, and cannot be superseded by the law of society. In those instances, says Sir Michael Foster, the law, with great propriety, and in strict justice, considers the individual to be under the protection of the law of nature. There are some important distinctions on this subject, between justifiable and excusable homicide,
It is difficult to deduce any precise measure of damages from the numerous cases, but the courts have in these cases discountenanced the idea of speculative or remote damages, though it is impossible to ascertain any certain rule from the numerous cases which remarkably illustrate "the oscillations of the judicial pendulum." The numerous cases under the head of remote and consequential damages, are most industriously collected by Mr. Sedgwick in the 3d chapter of his treatise, and to that I must refer the student. In the Law Reporter, Boston, April, 1847, there is an elaborate review of the cases in matters of tort on the subject of exemplary damages, endeavouring to show that the decisions do not, on a strict examination and construction of the language of them, amount to authorities for going beyond compensatory damages. On this subject it appears to me that the conclusions in Mr. Sedgwick's treatise are well warranted by the decisions. and that the attempt to exclude all consideration of the malice, and wickedness, and wantonness of the tort, in estimating a proper compensation to the victim is impracticable, visionary and repugnant to just feelings of social sympathy. In trespass, when the party wantonly violates the law, " the jury should not be sparing in the damages." Lord Abinger, 1 Meeson <JWeUby, 342.
* See infra, p. 340, note.
b Hawk. P. C. b. 1. ch. 28. sec. 21. Foster's Discourse of Homicide, 273, 274.