CRIMINAL LAW. 



531 



that all wrongs are divisible into two species ; first, 

 civil or private wrongs ; secondly, criminal or public 

 wrongs. The former are to be redressed by private 

 suits, or remedies instituted by the parties injured. 

 The latter are redressed by the state, acting in its 

 sovereign capacity. The general description of the 

 private wrongs is, that they comprehend those inju- 

 ries which affect the rights and property of the indi- 

 vidual, and terminate there ; that of public wrongs 

 or offences is, that they comprehend such acts as in- 

 jure, not merely individuals, but the community at 

 large, by endangering the peace, the comfort, the 

 good order, the policy, and even the existence of so- 

 ciety. The exact boundaries between these classes 

 are not, perliaps, 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 

 individual whom they directly injure. In doubtful 

 cases, the legislature usually interferes, and pre- 

 scribes 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 the com- 

 mon law, two classes of offences are distinctly traced 

 out. The first embraces those which rest upon le- 

 gislative enactments. The second embraces those 

 which, independently of any such enactment, are 

 deemed, from their very nature, injuries to the pub- 

 lic. The offences belonging 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 appreciation of the principles and cases already 

 well settled by former adjudications. When, there- 

 fore, a non -enumerated wrong arises, which does not 

 fall under any known former rule, the question which 

 is discussed is, how far it fells under the principles 

 already established respecting public crimes. If 

 reasoning furnishes a strong analogy, it is deemed a 

 public offence ; if otherwise, it is left for the legisla- 

 ture to declare that it shall be such. Treason, mur- 

 der, setting fire to a dwelling-house in a large city, 

 riots disturbing the general peace, poisoning public 

 wells, &c., it will be 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 the same principle in 

 mere secret thefts, or a private fight, and yet deny 

 its existence in violent seizures of private property, 

 and private quarrels producing defamation of cha- 

 racter. The common law considers the great object 

 of the public punishment of crimes to be the preven 

 tion of offences by deterring both the offender and 

 others from a repetition 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 him- 

 self; for, so far as that is effected, it prevents offen- 

 ces. That system of punishments is indeed most 

 desirable, which attains its object by such a re- 

 formation. But it is obvious, that reformation 

 cannot always be relied upon as a sufficient se- 

 curity for society. Hence arises the necessity or 

 policy of capital punishment, which, by cutting off 

 the offender, not only operates as a terror to others, 

 but secures society against the possible perpetration 

 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 in- 

 adequate to produce security. Some persons, indeed, 

 doubt the lawfulness of capital punishment alto- 

 gether ; but the divine law has certainly sanctioned 

 it Others, who do not question its lawfulness, 



doubt, or deny its policy. It is certain that the fre- 

 quency of 'capital punishments has some tendency to 

 abate its terrors ; 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 convic- 

 tion. There is a natural repugnance to punish, with 

 so much severity, slight offences ; and judges and 

 .juries, as well as the public, under such circumstan- 

 ces, lean against prosecutions and in favour of acquit- 

 tals. Hence the probability of convictiqn is sometimes 

 in proportion to the moderation of punishments. 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 legislation has, therefore, 

 almost uniformly been in favour of relaxing the seve- 

 rity of the penal code. 



In Britain, capital punishments are very exten- 

 sively provided for by statute. There are more than 

 160 capital offences in our code. (4. Bl. Comm. 

 18.) In the United States of America, there has been 

 a constant effort to diminish the number of capital 

 offences. There are but nine in the criminal code of 

 the United States ; and the codes of the respective 

 states do not generally embrace a larger number. 

 Treason, murder, rape, arson, or burning of a dwel- 

 ling-house, are generally punishable with death; and 

 sometimes robbery, burglary, or breaking into a 

 dwelling-house in the night-time with intent to steal. 

 The code of the United States also includes piracy, 

 the slave-trade, fraudulently casting away ships on 

 the sea, robbery of the mail, burning public ships of 

 war, and the rescue of convicts capitally convicted 

 when the sentence is about to be executed. The 

 punishment of other offences is, for those of great 

 enormity, solitary confinement or hard labour in a 

 penitentiary or prison erected for that purpose ; and 

 for those of a lower degree, fine or imprisonment, or 

 both, according to the nature and aggravation of the 

 offence. In the United States, no capital punish- 

 ments are inflicted unless by the injunctions of some 

 positive statute. In England, the same rule prevails 

 to a limited extent. A few offences are punished by 

 the common law with death, without any statute to 

 direct it, founded either upon the notion of conform- 

 ity to the divine law, or upon some positive law 

 whose existence cannot now be traced. Such are mur- 

 der, rape, robbery, burglary, and certain other felo- 

 nies at the common law. In respect to other offences, 

 for which no statute has prescribed any punishment, 

 the general rule of the common law is, that they are 

 punishable by fine or imprisonment, or by both. 



Considering the infinite variety of circumstances 

 which may occur to extenuate or aggravate the of- 

 fence, not only the common law, but the legislature 

 has left much of tlw degree of punishment to the dis- 

 cretion of the judges wno try the case. That dis- 

 cretion must be exercised in public ; and experience 

 has proved that it is, on the whole, wiser and safer 

 to leave it to the natural operations of judicial re- 

 sponsibility, than, by any attempts to define and limit 

 the exact degree of punishment, to run the hazard 

 of introducing other mischiefs, by excluding mercy 

 where it might be most desirable. No code of laws 

 could be sufficiently minute to embrace all circum- 

 stances ; and none could, therefore, provide for a 

 perfect uniformity of punishments, according to the 

 absolute nature of the offence. Another inquiry is, 

 Who are, in a legal sense, capable of committing 

 crimes, so as to be amenable to punishment ? The 



* Indeed, the severity of the punishment sometimes in 

 ilnrrs the offender to become more savage and atrociou*. 

 Thus, where robhery is punishably with death, it is often 

 attended with murder 



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