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Subject Area: Law
Topic: The American Revolution and Constitution

§ 13.: Corporal punishment—When a cruel and unusual punishment.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 13.

Corporal punishment—When a cruel and unusual punishment.—

The whipping-post constituted at one time a very common instrument of punishment, and in the colonial days of this country it ornamented the public square of almost every town. At present corporal punishment is believed to be employed only in Delaware and Maryland.3 It was much resorted to in England as a punishment for certain classes of infamous crimes. “The general rule of the common law was that the punishment of all infamous crimes should be disgraceful; as the pillory for every species of crimen falsi, as forgery, perjury and other offenses of the same kind. Whipping was more peculiarly appropriated to petit larceny and to crimes which betray a meanness of disposition and a deep taint of moral depravity.”1 It does seem as if there are crimes so infamous in character, and betoken such a hopeless state of moral iniquity, that they can only be controlled and arrested by the degrading punishment of a public whipping. It is now being very generally suggested as the only appropriate punishment for those cowardly creatures who lay their hands in violence upon their defenseless wives. But public opinion is still strongly opposed to its infliction in any case. The punishment is so degrading that its infliction leaves the criminal very little chance for reformation, unless he betakes himself to a land, whither the disgrace will not follow him, or be generally known.2

In respect to the constitutional right to impose the penalty of corporal punishment for crime, Judge Cooley says: “We may well doubt the right to establish the whipping-post and the pillory in the States in which they were never recognized as instruments of punishment, or in States whose constitutions, revised since public opinion had banished them, have forbidden cruel and unusual punishment. In such States the public sentiment must be regarded as having condemned them as ‘cruel;’ and any punishment, which if ever employed at all has become altogether obsolete, must certainly be looked upon as ‘unusual.’ ”3 The fact, that this mode of punishment has become obsolete, has made it impossible to secure any large number of adjudications on the constitutionality of a statute, which authorized or directed the infliction of corporal punishment. But so far as the courts have passed upon the question, they have decided in favor of its constitutionality, and held that whipping was not a “cruel and unusual” punishment.1 It has also been recognized as a legitimate power, in keepers of prisons and wardens of penitentiaries to administer corporal punishment to refractory prisoners.2 But whatever may be the correct view in respect to the constitutionality of laws imposing corporal punishment, this mode of punishment has now become very generally obsolete, and no court would presume to employ it upon the authority of the English common law. A statute would be necessary to revive it.3

[3]In Maryland it has been revived as a punishment for wife-beating.

[1]Taylor, Ch. J., in State v. Kearney, 1 Hawks, 53.

[2]“Among all nations of civilized man, from the earliest ages, the infliction of stripes has been considered more degrading than death itself.” Herber v. State, 7 Texas, 69.

[3]Cooley Const. Lim. *330.

[1]Commonwealth v. Wyatt, 6 Rand. 694; Foote v. State, 59 Md. 264 (for wife-beating); Garcia v. Territory, 1 New Mex. 415. In the last case, the corporal punishment was inflicted for horse-stealing.

[2]Cornell v. State, 6 Lea, 624. This power is exercised generally throughout the country; it is hard to say, to what extent with the direct sanction of law.

[3]1 Bishop Crim. Law, § 722. Under the national government, both the whipping-post and the pillory were abolished by act of Congress in 1839. 5 U. S. Stat. at Large, ch. 36, § 5.