§ 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 
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.
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- Preface to the Second Edition.
- State and Federal Control of Persons and Property. Vol. I.
- Chapter I.: Scope of the Government Control and Regulation of Personal Rights.
- § 1.: Police Power—defined and Explained.—
- § 2.: The Legal Limitations Upon Police Power.—
- § 3.: Construction of Constitutional Limitations.—
- § 4.: The Principal Constitutional Limitations.—
- § 5.: Table of Private Rights.—
- Chapter II.: Government Regulation of Personal Security.
- § 10.: Security to Life.—
- § 11.: Capital Punishment, When Cruel and Unusual.—
- § 12.: Security to Limb and Body—general Statement.—
- § 13.: Corporal Punishment—when a Cruel and Unusual Punishment.—
- § 14.: Personal Chastisement In Certain Relations.—
- § 15.: Battery In Self-defense.—
- § 16.: Abortion.—
- § 17.: Compulsory Submission to Surgical and Medical Treatment.—
- § 18.: Security to Health—legalized Nuisance.—
- § 19.: Security to Reputation—privileged Communications. 3 —
- § 20.: Privilege of Legislators.—
- § 21.: Privilege In Judicial Proceedings.—
- § 22.: Criticism of Officers and Candidates For Office.—
- § 23.: Publications Through the Press.—
- § 24.: Security to Reputation—malicious Prosecution.—
- § 25.: Advice of Counsel, How Far a Defense.—
- Chapter III.: Personal Liberty.
- § 26.: Personal Liberty—how Guaranteed.—
- Chapter IV.: Government Control of Criminal Classes.
- § 27.: The Effect of Crime On the Rights of the Criminal—power of State to Declare What Is a Crime.—
- § 28.: Due Process of Law.—
- § 29.: Bills of Attainder.—
- § 30.: Ex Post Facto Laws.—
- § 31.: Cruel and Unusual Punishment In Forfeiture of Personal Liberty and Rights of Property.—
- § 32.: Preliminary Confinement to Answer For a Crime—commitment of Witnesses.—
- § 33.: What Constitutes a Lawful Arrest.—
- § 34.: Arrests Without a Warrant.—
- § 35.: The Trial of the Accused.—
- § 36.: The Trial Must Be Speedy.—
- § 37.: Trials Must Be Public.—
- § 38.: Accused Entitled to Counsel.—
- § 39.: Indictment By Grand Jury Or By Information.—
- § 40.: The Plea of Defendant.—
- § 41.: Trial By Jury—legal Jeopardy.—
- § 42.: Right of Appeal.—
- § 43.: Imprisonment For Crime—hard Labor—control of Convicts In Prison.—
- § 43 A.: Convict Lease System.—
- Chapter V.: The Control of Dangerous Classes, Otherwise Than By Criminal Prosecution.
- § 44.: Confinement For Infectious and Contagious Diseases.—
- § 45.: The Confinement of the Insane.—
- § 46.: Control of the Insane In the Asylum.—
- § 47.: Punishment of the Criminal Insane.—
- § 48.: Confinement of Habitual Drunkards.—
- § 49.: Police Control of Vagrants.—
- § 50.: Police Regulation of Mendicancy.—
- § 51.: Police Supervision of Habitual Criminals.—
- § 52.: State Control of Minors.—
- Chapter VI.: Regulations of the Rights of Citizenship and Domicile.
- § 53.: Citizenship and Domicile Distinguished.—
- § 54.: Expatriation.—
- § 55.: Naturalization.—
- § 56.: Prohibition of Emigration.—
- § 57.: Compulsory Emigration.—
- § 58.: Prohibition of Immigration.—
- § 59.: The Public Duties of a Citizen.—
- Chapter VII.: State Regulation of Morality and Religion.
- § 60.: Crime and Vice Distinguished—their Relation to Police Power.—
- § 61.: Sumptuary Laws.—
- § 62.: Church and State—historical Synopsis.—
- § 63.: Police Regulation of Religion—constitutional Restrictions.—
- § 64.: State Control of Churches and Congregations.—
- § 65.: Religious Criticism and Blasphemy Distinguished.—
- § 66.: Permissible Limitations Upon Religious Worship.—
- § 67.: Religious Discrimination In Respect to Admissibility of Testimony.—
- § 68.: Sunday Laws.—
- Chapter VIII.: Freedom of Speech and Liberty of the Press.
- § 81.: Police Supervision Prohibited By the Constitutions.—
- Chapter IX.: Regulation of Trades and Occupations.
- § 85.: General Propositions.—
- § 86.: Prohibition As to Certain Classes.—
- § 87.: Police Regulation of Skilled Trades and Learned Professions.—
- § 88.: Regulation of Practice In the Learned Professions.—
- § 89.: Regulation of Sale of Certain Articles of Merchandise.—
- § 90.: Regulations to Prevent Fraud.—
- § 91.: Legal Tender and Regulation of Currency.—
- § 92.: Free Coinage of Silver and the Legal Tender Decisions.—
- § 93.: Legislative Restraint of Importations—protective Tariffs.—
- § 94.: Liberty of Contract, a Constitutional Right.—
- § 95.: Compulsory Formation of Business Relations—common Carriers and Innkeepers Exceptions to the Rule—theaters and Other Places of Amusement.—
- § 96.: Regulation of Prices and Charges.—
- § 97.: Later Cases On Regulating Prices and Charges—regulations Must Be Reasonable—what Is a Reasonable Regulation, a Judicial Question.—
- § 98.: Police Regulation of the Labor Contract.—
- § 99.: Regulation of Wages of Workmen—mode of Measuring Payment—compulsory Insurance and Membership In Benefit Societies—release From Liability For Injuries to Employees.—
- § 100.: Regulation of Wages of Workmen, Continued—time of Payment—medium of Payment—fines and Deductions For Imperfect Work—mechanics’ Lien and Exemption of Wages.—
- § 101.: Prohibition of Employment of Aliens—exportation of Laborers—importation of Alien Laborers Under Contract—chinese Labor—employers Compelling Workmen to Leave Unions.—
- § 102.: Regulating Hours of Labor.—
- § 103.: Regulations of Factories, Mines and Workshops—sweatshops. 1 —
- § 104.: Period of Hiring—breach Or Termination of Labor Contract—compulsory Performance of Labor Contract—requirement of Notice of Discharge—employers Required to Give Statement of Reasons For Discharge.—
- § 105.: Regulations of the Business of Insurance.—
- § 106.: Usury and Interest Laws.—
- § 107.: Prevention of Speculation.—
- § 108.: Prevention of Combinations In Restraint of Trade.—
- § 109.: A Combination to “corner” the Market.—
- § 109a.: Contracts Against Liability For Negligence Prohibited.—
- § 110.: Common Law Prohibition of Combinations In Restraint of Trade Restated.—
- § 111.: Industrial and Corporate Trusts, As Combinations In Restraint of Trade.—
- § 112.: Modern Statutory Legislation Against Trade Combinations, Virtual Monopolies, and Contracts In Restraint of Trade.—
- § 113.: Different Phases of the Application of Anti-trust Statutes—factor’s System—control of Patents—combinations Against Dishonest Debtors—agreements to Sell Only to Regular Dealers—combinations of Employers to Resist Combinations of Employees—departmen
- § 114.: Labor Combinations—trades Unions—strikes.—
- § 115.: Strikes, Continued, and Boycotts.—
- § 116.: Wagering Contracts Prohibited.—
- § 117.: Option Contracts, When Illegal.—
- § 118.: General Prohibition of Contracts On the Ground of Public Policy.—
- § 119.: Licenses.—
- § 120.: Prohibition of Occupations In General. 5 —
- § 121.: Prohibition of Trade In Vice—social Evil, Gambling, Horse-racing.—
- § 122.: Prohibition of Trades For the Prevention of Fraud—adulterations of Goods—harmful Or Dangerous Goods—prohibition of Sale of Oleomargarine.—
- § 123.: Prohibition of Ticket-brokerage—ticket-scalping Prohibited and Punished.—
- § 124.: Prohibition of Sale of Game Out of Season—prohibition of Export of Game.—
- § 125.: Prohibition of the Liquor Trade.—
- § 126.: Police Control of Employments In Respect to Locality. 3 —
- § 127.: Monopolies—general Propositions.—
- § 128.: Monopolies and Exclusive Franchises In the Cases of Railroads, Bridges, Ferries, Street Railways, Gas, Water, Lighting, Telephone and Telegraph Companies.—
- § 129.: Patents and Copyrights, How Far Monopolies.—
- § 130.: When Ordinary Occupations May Be Made Exclusive Monopolies—saloons—banking—insurance—peddling—building and Loan Associations—restriction of Certain Trades to Certain Localities—slaughterhouses—markets.—
- § 131.: National, State and Municipal Monopolies.—
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. 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.” 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.
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.’ ” 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. It has also been recognized as a legitimate power, in keepers of prisons and wardens of penitentiaries to administer corporal punishment to refractory prisoners. 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.
In Maryland it has been revived as a punishment for wife-beating.
Taylor, Ch. J., in State v. Kearney, 1 Hawks, 53.
“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.
Cooley Const. Lim. *330.
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.
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.
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.