The idea of possession over human beings has naturally the same associations and leads to the same conduct; of course in slavery there was a precise identity of conduct. So too, in our days, it may be noticed that many parents treat their child precisely as if he was their chattel; they are astonished if any one offers to hinder them from beating the child; it belongs to them; it is their thing; they are its owners. So too the same notion obtains often in a husband about his wife; a great many women concede it and do not oppose it. So too for workmen, this identification of authority and possession once prevailed; though it is now decidedly lessened. In short, the survival of the notion of possession has an implication in the idea of authority which explains well enough the numerous abuses observable even now in the exercise of power by those who are vested with it, - whether in the family, in the factory, in the government, or in the army. Among professional military men this identification of power and possession is still complete. A soldier, who is a man, is for them merely a thing, which does manœuvres and which they are to manage as they think best. There may be laws for limiting this power and causing them to respect human liberty and dignity, but they are dead letters. The facts which we have plentifully cited above show that such practices flow from the inherent tendency to abuse power. Topic 4. Convict 744. STATE v. ROSEMAN SUPREME COURT OF NORTH CAROLINA. 1891 108 N. C. 765, 12 S. E. 1039 INDICTMENT, tried at Spring Term, 1891, of Rowan Superior Court, BYNUM, J., presiding. The indictment charges that the defendant made an assault upon the prosecutrix "with a certain deadly weapon, to-wit, a club of the length of three feet and one inch in diameter," etc. He pleaded not guilty. On the trial it appeared that the prosecutrix was confined in the common jail of Rowan County and the defendant was the keeper of the jail; that on one night she sang and made much disagreeable noise to the discomfort of the defendant's wife, who was lying in a room of the first story of the jail and very ill; that the prosecutrix refused to obey the jailer's command to cease making noise, etc. Whereupon, he carried her down (she was confined on the third floor) to the second floor and whipped her; that witness did not see him whipping her, as he (witness) was on the third floor, but heard the licks and heard the woman hollowing; that he hit her fifteen or twenty licks, some of the prisoners said twenty-eight; that he then brought her back up stairs; her arms and back were cut and bleeding; that some of the prisoners told him he ought not to have whipped that woman that way, and that defendant said he had whipped her with a buggy whip, etc. . . . There was a verdict of "guilty" and judgment thereupon that the defendant pay a fine of one hundred dollars, from which he appealed to this Court, assigning as error, first, that the Court had not jurisdiction, and secondly, that the fine was excessive. The Attorney General, for the State. Mr. John W. Mauney, for defendant. MERRIMON, C. J. Clearly the Court had jurisdiction. . . . It must be conceded that the prosecutrix behaved badly, and greatly provoked and annoyed the defendant and distressed his sick wife. But she was in prison, and helpless. While the jailer (the defendant) had the right to subdue her outbreak and keep her in subordination by reasonable and proper means, he had not the shadow of a right to gratify his feelings of revenge or to inflict upon her such a cruel and terrible beating with a horsewhip. We cannot hesitate to say that the injury inflicted was serious, and that the fine imposed was clearly within the discretion of the Court. State v. Miller, 94 N. C. 902, 904. Affirmed. 745. PUBLIC LAWS OF THE UNITED STATES. 1873. (St. Mar. 3, c. 249, § 6; Rev. St. 1878, § 1354.) Military Prisons. In no case shall any prisoner be subjected to whipping . . . for the purpose of discipline or for producing penitence. 746. AMERICAN PRISON ASSOCIATION. (Proceedings, 1898, p. 296; 1902, p. 80.) ... Warden Wright (Pennsylvania) I have been the chief officer in a prison for thirty years. In Pennsylvania flogging is not prohibited by law. The law simply reads that there shall be no cruel or inhuman punishments. . . . When I entered the prison thirty years ago I found a cat of thirteen tails and we kept it hid away till it was lost. With over a thousand men I have never seen the time when it was necessary to use the lash. . . . In this matter of the lash we must agree to disagree. What is done in Colorado and some other States would not be tolerated in Pennsylvania by public sentiment. I believe prison discipline should be largely a matter of moral suasion. . . . Warden Wolfer (Minnesota) I do not want to go on record as condemning the punishment of convicts by the strap. I do not want to say that there are no conditions, no circumstances, under which it might not be given with some benefit. But I do wish to go on record as saying that I believe, if it is admitted that it is a proper corrective method of punishment, that it will lead to very much harm, much more harm than the good that could possibly come from it. I have inflicted punishment by the strap and I have done it a good many times, but I never did it in my life that I did not feel, after the punishment was over, that I had degraded myself and that I had degraded the man very much more. I believe that in ninety cases out of a hundred it injures the man physically and morally; and I believe that it will not only break his spirit, which may be considered desirable under some circumstances, but that it will break his moral constitution to such a degree that he never will fully recover from it. The comparison with the treatment of children is ingenious; but a grown man who is responsible for his own acts is no longer to be treated as you treat a child, and I do not believe he can be so treated and afterwards look people in the face and feel that he can be a real man. . . . As a rule the prisoner who is obstreperous is a man who has a superfluous amount of animal vitality, and it is true that you can take it out of him quickly by a blow. You can humiliate him. But it will not last long. As soon as his animal spirits return he will probably do the same thing over again. I believe that the effect, upon the whole, is bad and that the effect on the prison is bad. The atmosphere will breathe the spirit of brutality. . . . Superintendent Scott (Massachusetts) - This discussion on punishment has been going on, so far as I am concerned, for forty years. My father never struck me a blow. My mother used to punish me. I learned to respect and obey both my father and my mother. To any person engaged in prison work the matter of punishment is a source of anxiety. I have tried in my own humble way to look at this in a philosophical way, and have tried to develop some method of punishment that would maintain discipline in my institution and satisfy my own mind in regard to it. I believe the severer you make punishment the more you arouse antagonism to withstand it. Take a man and flog him, or put him in a dark cell, and he takes on the attitude "I will stand this as long as I can," in a spirit of bravado. When he goes back to his work in that attitude the effect is bad on the man and bad on the rest of the prison. . . . Shutting him up does not change the man; whipping does not change him; he is the same man. I have whipped, and I have shut up on bread and water in dark cells, and I have shut them up in light cells, and now after four years of this other method, I can say that there never was a time in the history of our place when the general atmosphere was so good as at the present time. We have got rid of the sullenness of a place where you administer severe punishments. The attitude of the men toward the administration is very different from what it is where men are flogged and locked up on bread and water in a dark cell. TITLE B: EXCUSES BASED ON PARAMOUNT COMMUNITY INTERESTS NECESSITATING THE PLAINTIFF'S INDIVIDUAL SACRIFICE 749. HERBERT SPENCER. Justice: being Part IV of the Principles of Ethics. (1891. Appleton ed., pp. 6, 20, 71). Chap. III, Human Justice. . . If the preservation and prosperity of the species is to be desired, there inevitably emerge one most general conclusion and from it three less general conclusions. The most general conclusion is that, in order of obligation, the preservation of the species takes precedence of the preservation of the individual. . . . If the constitution of the species and its conditions of existence are such that sacrifices, partial or complete, of some of its individuals, so subserve the welfare of the species that its numbers are better maintained than they would otherwise be, then there results a justification for such sacrifices. Such are the laws by conformity to which a species is maintained; and if we assume that the preservation of a particular species is a desideratum, there arises in it an obligation to conform to these laws, which we may call, according to the case in question, quasi-ethical or ethical. . . . The requirement that individual activities must be mutually restrained, which we saw is so felt among certain inferior gregarious creatures that they inflict punishments on those who do not duly restrain them, is a requirement more imperative among men. . . . Through all which sets of facts is manifested the truth, recognized practically if not theoretically, that each individual carrying on the actions which subserve his life, and not prevented from receiving their normal results, good and bad, shall carry on these actions under such restraints as are imposed by the carrying on of kindred actions by other individuals, who have similarly to receive such normal results, good and bad. And vaguely, if not definitely, this is seen to constitute what is called justice. . . We have seen [ante, No. 549] that the primary law that each individual shall receive and suffer the benefits and evils of his own nature, following from conduct carried on with due regard to sociallyimposed limits, must, where the group is endangered by external enemies, be modified by this secondary law, which requires that there shall be such sacrifice of individuals as is required to preserve, for the aggregate of individuals, the ability thus to act and receive the results of actions. Hence, for purposes of defensive war, there is justified such contingent loss of physical integrity as effectual defence of the society requires; supposing, always, that effectual defence is possible. For it would seem to be an implication that where the invading force is overwhelming, such sacrifice of individuals is not justified. 750. JEREMY BENTHAM. Principles of the Civil Code. (1818. Works, Bowring ed. Vol. I, p. 313.) Ch. XIII. Sacrifices of Security to Security. ... All government is only a tissue of sacrifices. The best government is that in which the value of these sacrifices is reduced to the smallest amount. The practical perfection of security is a quantity which unceasingly tends to approach to the ideal perfection without ever being able to reach it. I shall proceed to give a catalogue of those cases in which the sacrifice of some portion of security, in respect to property, is necessary for the preservation of the greater mass: 1. General wants of the State for its defence against external enemies. 2. General wants of the State for defence against delinquents or internal enemies. 3. General wants of the State for the prevention of physical calamities. 4. Fines at the expense of offenders, on account of punishment, on account of indemnities in favor of the parties injured. 5. Incroachment upon the property of individuals, for the development of the powers to be exercised against the above evils, by justice, by the police, by the army. 6. Limitations of the rights of property, or of the use which each proprietor may make of his own goods, in order to prevent his injuring himself or others. 751. JUSTICE OLIVER WENDELL HOLMES. Privilege, Malice, and Intent. (1894. Harvard Law Review, VIII, 1.) The intentional infliction of temporal damage, or the doing of an act manifestly likely to inflict such damage and inflicting it, is actionable if done without just cause. When the defendant escapes, the Court is of opinion that he has acted with just cause. There are various justifications. In these instances, the justification is that the defendant is privileged knowingly to inflict the damage complained of. But whether, and how far, a privilege shall be allowed is a question of policy. Questions of policy are legislative questions, and judges are shy of reasoning from such grounds. Therefore, decisions for or against the privilege, which really can stand only upon such grounds, often are presented as hollow deductions from empty general propositions like "sic utere tuo ut alienum non laedas " (which teaches nothing but a benevolent yearning), or else are put as if they themselves embodied a postulate of the law and admitted of no further deduction (as when it is said that "although there is temporal damage there is no wrong;" whereas, the very thing to be found out is whether there is a wrong or not, and if not, why not). When the question of policy is faced, it will be seen to be one which cannot be answered by generalities, but must be determined by the particular character of the case, even if everybody agrees what the answer should be. . . Therefore, the conclusion will vary, and will depend on different reasons according to the nature of the affair. For instance, a man has a right to set up a shop in a small village which can support but one of the kind, although he expects and intends to ruin a deserving widow who is established there already. He has a right to build a house upon his land in such a position as to spoil the view from a far more valuable house hard by. He has a right to give honest answers to inquiries about a servant, although he intends thereby to prevent his getting a place. But the reasons for these several privileges are different. The first rests on the economic postulate that free competition is worth more to society than it costs. The next, upon the fact that a line must be drawn between the conflicting interests of adjoining owners, which necessarily will restrict the freedom of each; upon the unavoidable philistinism which prefers use to beauty when considering the most profitable way of administering the land in the jurisdiction taken as one whole; upon the fact that the defendant does not go outside his own boundary; and upon other reasons to be mentioned in a moment. The third, upon the proposition that the benefit of free access to information, in some cases and within some limits, outweighs the harm to an occasional unfortunate. Not only the existence but the extent or degree of the privilege will vary with the case. Some privileges are spoken of as if they were absolute, to borrow |