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us of the horrid practice of self-redress known under the name of Lynch law for example, the outcry raised against the Jews; the storming of the house of Haber in Carlsruhe; the riotous proceedings against a clergyman in Heidelberg; the contests of the Swiss respecting the Jesuits, &c.

The proceedings of the Courts are every where public, and juries are summoned in every important civil and criminal cause. Fifteen compose what is called the grand, and twelve the petty jury in criminal cases; five are required in matters relating to apprentices, seven in investigations of insanity, and six in disputes with regard to property.* Many in America complain of the provision, that the jury must be unanimous. In several cases a second trial is granted with a new jury, for example in case of improper conduct on the part of the jurymen, or of a verdict that manifestly contradicts the evidence, or where new and important circumstances have been brought to light. Jurymen in general must possess the same qualifications as voters, and there are precise regulations as to their selection, rejection, &c. They usually receive a compensation of a dollar and a quarter for every day's attendance, and five cents for every mile of travel. According to the letter of the law, the jury decides only upon the fact; but in truth they often decide, in America as well as elsewhere, on the legal question inseparably connected with it; and in this they mostly follow their feelings, being guided by the circumstances of each individual case. This may be the manifestation of a noble and more lofty sense of right,§ and may supply the defects of legislation; or their decisions may proceed from passion and partiality, and undermine the necessary rules of law. Yet where the people effectively co-operate in making the laws, they would probably observe these rules more strictly than elsewhere, where the laws are often so framed as to have a one-sided bearing. If notwithstanding we condemn the excessive lenity of many proceedings of the Americans, they on the other hand often find fault with our severity, as for instance towards Silvio Pellico, Jordan, Behr, Hoffman, Eisenmann, and others.

The criminal law differs in different states; in general however it is very mild, so that the capital punishment, hanging, is inflicted for only a few crimes; for the most part only for murder

*In some states such is the case; but the practice varies widely in the different states.--TR.

† Walker, p. 538, especially in Ohio.

In Massachusetts, for example, they must be people of good understanding and fair character. State or United States officers, clergymen, physicians, and persons over sixty years of age, are exempt. The lowest ratio is one juryman for every one hundred inhabitants; the highest, one for every fifty. For every trial, they are selected by lot; and under certain circumstances, as many as twenty may be rejected. In that case the jury exercises a sort of pardoning power.

and treason.* Vagabonds and other worthless characters however betake themselves to where the laws are the mildest. Corporal punishments exist in only a few states, and are seldom inflicted.

There is in the United States no general bankrupt law; and from this much evil has resulted. The imprisonment of honest debtors is for the most part abolished, or will soon be so. Where there is nothing, imprisonment does no good; and confinement usually increases the debtor's inability to pay.† Creditors too must be careful in trusting out their money. In cases of failure in business, a proportionate division of the property among all the creditors usually takes place. The laws of the different states are not unanimous as to whether a subsequent inheritance shall be subject to the unsatisfied claims of creditors, or not.

That the number of crimes against the person should decrease, and those against property increase, is to be expected with the advance of civilization and the growth of wealth. Besides this, innumerable causes and circumstances exert such a manifold and important influence over the increase or diminution of crime, that it is impossible from mere figures and statistical tables to draw accurate conclusions as to the morals of a people. Slaves apparently commit fewer crimes, because the masters themselves usually punish them. The crimes of the colored people and of free negroes dépend no doubt chiefly on the degree of immorality prevalent among them; but somewhat also on their civil position, the stricter laws sometimes enforced against them, different proceedings as to proof, the difficulty of procuring testimony in their favor, &c.

As to the right of inheritance, there are many minor points of difference but the abolition of the right of primogeniture, and the equal division of estates among the heirs, are universal; and

*In New York, capital punishment is inflicted only for murder, treason, and arson in the first degree. Homicide is punished with imprisonment for from two to seven years; rape, compulsory marriage, and duelling, for different periods up to ten years; bigamy, for five years. If an intoxicated physician prescribes for a patient, it is treated as a misdemeanor, and punished. In Pennsylvania, murder in the second degree is punishable with from two years, to life-long imprisonment; homicide, from two to six years; arson, one to ten; sodomy, one to five; forgery, one to seven; horse-stealing, one to four; perjury, one to five years. The punishment is made much heavier in case of a repetition of the offence. In Massachusetts, the strange proposition has been made, either to abolish capital punishment altogether, or to pass a law that the clergy should execute the sentence on a Sunday before the church door, since God demanded blood for blood. The laws against duelling are very strict in many of the states.

In the year 1839, there were imprisoned in Baltimore 230 persons, whose debts did not amount to ten dollars each; and eight, where they did not exceed one dollar. E. g. in Massachusetts the parties who inherit are: a. The children in equal shares, and grandchildren in like manner when there are no children; otherwise representation per stirpes takes place. b. The father. c. Brothers and sisters and their children, together with the mother. d. The mother alone, if there are no surviving brothers and sisters. e. Other relatives of the nearest ancestor. f. Illegitimate children succeed to the mother.

the practice is attended with the most important consequences. The extremes of wealth and poverty are thereby prevented; population, comfort, and activity promoted; and more is gained in a political point of view, than is ever possible under the opposite system. The father is not bound by law to give each child a portion, nor are children and grandchildren bound by law to support parents and grandparents: hitherto, however, natural affection without compulsion has proved a sufficient inducement to what is reasonable and praiseworthy.

Marriage is regarded as a civil contract; and clergymen are not allowed to perform the ceremony, till certain regulations in this respect are complied with. Grounds for divorce are not the same in all the states. Those commonly cited are: adultery, impotence, intentional abandonment, imprisonment for felony, habitual drunkenness, and long continued cruel treatment.

CHAPTER XXVI.

PRISONS.

The Philadelphia and Auburn Systems-Reformation of Prisoners-Instruction Female Prisoners-Reconciliation of both Systems.

It is well known that in the United States two kinds of prisons, or two systems for the treatment of prisoners, are in use: viz. the Auburn, called also the silent system; and the Philadelphia system of solitary confinement. Both have found such earnest, I may say passionate assailants and defenders, that we are reminded of the exaggerations of various theological controversies, and cannot but wish that their zeal was tempered with greater moderation.* It is certain that the prisons on both systems have been essentially improved by the exertions of judicious and well intentioned men. All have more reason to rejoice at this, than

* When it is stated, for example, that the Pennsylvania system is attacked only by "itinerant book-makers or morbid hallucinations of philanthropists."-Report of the Western Penitentiary of Pennsylvania, 1843, p. 4. Or when it is said that opposition has arisen "either from a spirit of reckless denunciation, or a prejudice which is created by a mercenary opposition."-Fifteenth Report on the Eastern Penitentiary of Philadelphia. Or this assertion: "The Auburn system is an inhuman, a debasing, a degenerate institution, conducted without shame or remorse."-Smith's Defence of the Solitary system, p. 92. When it is asserted that "the Pennsylvania system has fully satisfied its authors and advocates," the same of course may be said of the opposite system.

to indulge in mutual recriminations; more reason to learn from one another, than to depreciate and misrepresent essentials on account of minor details. Thus for example, evils are charged now upon one system, and now upon the other, or represented as inseparable from it, which either exist in both systems or cannot exist at all. The cruelty for instance or lenity of the keepers, good or bad food and clothing, longer or shorter duration of punishment, larger or smaller cells, and a better or worse mode of warming or ventilating them,-these and similar things may or may not be connected with either system. They mostly depend on the abundance or deficiency of means, and still more on the character of the prison officers. One who has examined many prisons knows, that an establishment managed professedly upon the same principles assumes an entirely different character according as it is under an able or an incompetent director.

Leaving out of view accidental circumstances, whether favorable or unfavorable, that may belong to either system, there remains one highly important point of difference: namely, that according to the Philadelphia plan, the prisoners are kept wholly separate from each other day and night; while upon the Auburn plan, they work together during the day, and are confined in separate cells only at night. Highly as these different practices may be estimated, it appears to me contrary to a scientific use of language, to apply to them the name of system. To a system should belong the combination of apparently opposite and manifold particulars; the subjection of the whole to general principles; and an essential distinction between the leading idea, the mode of carrying it out, and the final results. Human freedom or restraint, accountability or non-accountability, corporal punishment, or incarceration, or transportation, these would be contrarieties on which to found systems, rather than a simple difference in the mode of incarceration. Be this as it may, the seemingly very simple question, Are you in favor of solitary confinement by night, or by day and night? is not always as easily affirmed or denied as is often desired. Until a multitude of other questions have been answered and many secondary particulars made known, until one is enabled to descend from the abstract to the concrete, it is impossible to give any but a partial and hasty answer. What classes of offenders are to be incarcerated, for how long a time, at what occupation, in cells large or small, healthy or unhealthy? These and many other points must be first discussed and determined, before a decision can properly be given. To me it appears erroneous to adhere exclusively to one or the other method, without regard to controlling circumstances. I believe it possible to unite the two, to acknowledge and adopt the good in each, and to point out

their defects and extravagances. Especially is it wrong to treat the most different classes of transgressors in the same manner, and in unequal circumstances to set up an abstract, untrue equality in the eye of the law as the ultimate aim; when, on the contrary, we should shape and graduate the law, the treatment, and the punishment, according to these circumstances.*

If we reflect, that in former times criminals of every grade were shut up in the same space, and allowed to talk and shout without control, we must allow that in the silent system progress has been made towards moderation and good order. This commendable regulation need not however be carried to an extreme; for it is less hurtful to allow a few words to be spoken than to inflict innumerable punishments for them, and thus repress minor evils at the cost of greater abuses. Still less can I approve the costly means adopted to prevent the lightest propagation of sound; such pedantry belongs neither to science nor to justice. If in former times a barbarous avarice was usually conspicuous in the construction of prisons, we now sometimes witness a tendency to extravagant splendor. Many prisons resemble palaces, one in New York an Egyptian temple, and in Louisville and other places they are made to look like ancient castles. If we admit the principle of solitary confinement, that in Philadelphia is the most perfect, if not in the world, at least in the United States. This again shows how little the principle alone can decide; for solitary confinement in Philadelphia-where each prisoner is allotted a roomy cell with an adjoining garden of the same size, or in the second story two apartments-is a very different thing from what it is in places where the criminal is locked up in a small, dark, damp dungeon. For this reason alone, an imitation of this method under totally different circumstances might not lead to the same results or deserve the same approbation.

But even in Philadelphia, total solitude appears an aggravation of the usual punishment; wherefore there should be a strict adherence to the sentiment expressed in 1790 at the foundation of the prison, that absolute solitude should be inflicted only during a portion of the imprisonment, and should never exceed two years. The term of imprisonment ought always to be longer or shorter in proportion to its severity. Many legislatures (e. g. that of New Hampshire) have already paid attention to this; where this is not the case, equity is violated, or occasion is naturally given for an excessive use of the pardoning power.

I have just found in the work of the Caval. Ronchi vecchi sulla Prigione dello Spielberg, p. 91, a passage which I ought to quote. He declares himself (as do Messrs. Mittermaier, Petitti, Morichini, and Lucas) in favor of a "systema misto, nel quale debbe applicarsi solo per modo di eccezione, e a breve termine, il systema Pensilvanico."

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