Popular Science Monthly/Volume 28/April 1886/The Whipping-Post
WHEN men, under the impetus of the indignation and horror that are occasioned by the commission of crimes that bear the stamp of deliberate cruelty or atrocity, undertake to apply what are popularly deemed adequately severe remedies, their action generally embodies results that, to the mind of those versed in matters of social or governmental science, are as mischievous in their tendency as the evils sought to be remedied. It not infrequently happens, in cases of crimes of deep atrocity, that citizens resolve to avenge the wrong immediately, by lynching the offender. The folly and wrong of this method of meting out punishment in a civilized community are now universally conceded by calm-thinking and intelligent men. Again, it will happen that this same spirit of impatience at the slow processes of law and of distrust in the ordinary legal methods of punishment for crime will find its expression in an equally wrong and illogical method, to wit, the adoption of legislation providing cruel methods of punishment for certain crimes, in the belief that the evil of their frequent perpetration may be remedied in that way. Upon reflection, it will be found that both methods have their origin in the same erroneous conception of the scope and object of punishment for crime.
Under the designation "cruel punishments," I include all such penalties for crimes as are designed to inflict direct physical suffering, accompanied by circumstances of ignominy. The whipping-post is an example. The infliction of such penalties proceeds upon the theory of retaliation, and, for this reason, is improper and vicious. The legitimate province of all laws relating to penalties for crime is punishment simply. Anything that is inflicted beyond this, whether against law, as by mob violence, or by legislation, as in the case of retaliatory punishments, exceeds the legitimate scope of penalties for crime. There may be scriptural precedent to the contrary, but we must not adopt as a divine precedent, applicable to all nations, those rules which were laid down for a particular people, in a remote and barbarous age. Many things that are faithless, treacherous, unnatural and cruel, find a seeming sanction and precedent in the Mosaic law. Punishment, in its proper acceptation, means the protection of society, as represented by the State, against the inroads of the individual upon its welfare, or, as it is called in criminal-law phrase, "the peace of the State." It is only when the encroachments of the individual upon the rights of others amount to a public wrong that they are punishable criminally, and then it is only the wrong to society, and not the sin, that is cognizable by the tribunals.
Looking, then, at punishment in that light—viewing it as designed merely to conserve the public welfare, "the peace, government, and dignity of the State," as it is technically expressed in every formal indictment for crime in Maryland—by what consideration should we be guided in determining the true policy to be pursued in the application of punishments? Surely, not the narrow one of (at all hazards) suppressing the particular crime. Crime can not be stamped out by any heroic methods of treatment. Sin and crime are inevitable conditions incident to our present state of social advancement, just as disease is a factor of our physical being. He would be deemed an unskillful physician who directed all his efforts toward the driving away of a particular malady without regard to the effect of his course of treatment upon the general system of the patient. A like want of skill in statesmanship is exhibited when the legislator proposes such a remedy as that enacted in Maryland for wife-beating, to wit, the whipping-post, without weighing the effect of the introduction of that sort of remedy upon the constitution of the body politic.
The arguments advanced in support of this legislation are as plausible and as apt to impress the popular mind as they arc fallacious and illogical. The crime of the brutal wife-beater affords an excellent topic for declamation and invective, and people of generous, high impulse are very prone to yield their cooler judgment in such matters to specious rhetoric. The purpose of this paper is to discuss the question from a logical stand-point, free from all declamation or sentimentalism, in which the discussions of such questions too frequently abound.
Now, firstly, let it be borne in mind that, in the discussion of a question of punishment for crime, we deal with public interests. Mere satisfaction to the individual upon whom the crime is perpetrated is not to be considered, nor is the matter of the welfare of the offender to control our action in dealing with crime. Both interests must yield to that of the State, which is the injured party. The errors most frequently committed in forming a judgment as to the punishment due for any crime arise, on the one hand, from an excess of hostile feeling toward the offender, which obscures our view of the real end to be accomplished by his punishment, and, on the other hand, the opposite bent of letting sympathy and excess of kindly feeling shut out from our view the demands of public justice.
In traveling through the dark mazes of human frailty and crime, it would be difficult to find an object more seemingly devoid of every nobler human instinct than the cruel wife-beater, for whose offense a recent Maryland statute has revived the lash and whipping-post; unless, indeed, it be that loathsome specimen from the list of criminals, in whom humanity seems to have sunk to its lowest ebb, the cruel child-beater. But, let us proceed to answer the real question which the punishment of the wife-beater raises for solution. Does society, whose laws have been broken and must be vindicated, upon the whole, gain or does it lose by the method of punishment under discussion? Granted that the whipping-post will stamp out the crime of wife-beating in our midst, does the gain justify the price?
To illustrate my meaning clearly, I lay down the following proposition, which will not be gainsaid by any one versed in matters of social science. If, in the case of any given offense, no punishment to be meted out to the offender could be devised that would be effective in deterring others from committing the like offense, then the State could not rightfully punish at all, however heinous the offense. Why? Because, in the language of an eminent and conservative writer upon this subject, "the end of punishment is not by way of atonement or expiation of the crime committed, for that must be left to the just determination of a Supreme Being, but as a precaution against future offenses." Unless the punishment can be made effective for the conservation of the peace of the State, we are not justified in inflicting it. From this the further proposition follows, that the State may inflict no further or greater punishment than is absolutely necessary to attain that end, the protection of society. Do these interests require and are they advanced by the infliction of lashes upon wife-beaters?
It may safely be stated that a husband, before he beats his wife to the brutal extent that is contemplated by the statute authorizing lashes, has already sufficiently shown his evil character to warn his wife that he is no fit husband for her to dwell with and enable her to procure the separation to which the law entitles her. If this were done, all occasion for any such crime would be avoided, and the wife would be protected, and society protected. But, must a wife, simply because her husband is a brute, seek a divorce, and thus lose home and husband, and, moreover, deprive her children of their home and their father's support? Should the brute not rather be flogged and made to bear the punishment which is his due, instead of punishing his wife and children by a separation? These questions, which I have heard asked frequently, I shall endeavor to answer. A separation is a hard remedy. Through no fault on their part, the man's wife and children suffer bitterly. If the whipping-post could obviate all this, that would be an argument strongly in its favor; but what are the results of lashing the man? I will detail them. 1. You deprive him of his citizenship ban, and banish him. He can never return to the community in which ho lived and face his former acquaintances. 2. All his usefulness as a member of society is destroyed. All the good that was ever in him is driven out. With every lash you sear his soul and instill hatred and bitterness that can never be effaced. He, thenceforth, becomes a hapless wanderer and an outcast, with no ties or aspirations in common with his fellow-men. 3. His wife is divorced, practically, without the benefit of a regular divorce. Why so? Because the man, after being lashed, will never again return to her. You may assuredly assume this. But that is not all. 4. His children, most innocently and undeservedly of all, will suffer keenly. Not only are they deprived of their father, who will leave home, and friends, and usefulness behind, but they will be spoken of and treated slightingly by their youthful companions as the children of the man who has been flogged, and the stain will cling to them until the grave has closed over their remains. The very things to be deprecated and avoided are thus brought about by the whipping-post. According to a natural though not just impulse of our human nature, the very wife whose husband has been flogged on her account will meet with a degree of scorn, however undeserved. The State has, in no case, the right thus practically to destroy a citizen.
Apart from all these considerations, the demoralizing effect and brutalizing tendency of a public lashing should alone operate to condemn such legislation. While wife-beating may be suppressed, such exhibitions as were witnessed in Baltimore recently sow seeds that will crop out in other directions and produce a harvest of crime. This is a natural law, well understood by students of penal science. No exhibition can have a worse tendency than the public treatment of a human being in a manner that ignores his claim to consideration as such. The recent exhibitions, as related in the local newspapers, of a sheriff walking through the streets of Baltimore, "jauntily dressed," in procession with his "staff," and reported as feeling in "elegant trim" for his job, windows being raised all along the route, women and children rushing to pavements and casements, were a sad commentary upon our "improved" laws. The fruits of those exhibitions will outweigh, in their evil, all the possible "reformation" hoped for from such legislation.
Another consideration is the following: No man, by any act of his, can forfeit or lose his human nature. We are all created in one image. The strictest or most intolerant (put it as you choose) creeds give a man until after death without repentance before consigning him to perdition everlasting. Here, however, the State shuts out a man from repentance, treats him as a brute who has forfeited all right to consideration as a man. For, when we inflict ignominy, we do all this. In doing this, in disgracing a being created in the image of God, we simply insult the great Being who has implanted his image and spirit in all of us. However far we may stray from grace, we can not, by our acts, divest ourselves of our human nature or forfeit our claim to consideration as human beings.
The advocates of cruel punishments ask, How can you cope with brutality and brutal men unless you treat such men after their own fashion? You must meet brutality with brutality, is their plea; you must adopt strong remedies for evils that will not yield to mild measures. It might be answered that such punishments do not fulfill their end, and the history of all times and the testimony of the most enlightened students of such questions in all countries might be appealed to in confirmation. When, under English law, two hundred different actions, "many of them," according to a great writer on criminal jurisprudence, "not deserving the name of offenses," were punishable by death, and offenders were whipped, scourged, pilloried, hanged, quartered and sometimes roasted alive, crime was not less frequent, nor were the laws violated with less ado than to-day. The very circumstance that whipping and similar punishments have had their day of trial and were abolished by a generation that witnessed the workings of the system in all its full-blown beauty, demonstrates its unsatisfactory character to the minds of those best acquainted with it. But I go further. Crime is inherent in our defective civilization, and you can't hurry up the march of civilization in any such patent way as lashing men. Criminal law is not a panacea to soften the human heart. Civilization has reached a certain height or state of development, and sin and crime are concomitants of that state. While crime must be punished, it can not be wiped out. Human nature is so constituted that men revolt at the deliberate infliction of pain upon a fellow-being, more so, indeed, than at any violence or brutality committed by the offender in the heat of passion. Any punishment that shocks the moral sense of a community, as all cruel punishments are calculated to do, falls short of its mark and fails signally to produce the general satisfaction always arising from the administration of wise punishments. Wife-boating is the outcome of a state of society that produces numerous evils of equal degree of which the general public, not acquainted with reformatory work among criminals, are entirely ignorant. Brutal as the offense is, brutality will not be suppressed, civilization will not be advanced one shade nor society benefited or protected by resort to retaliatory punishments. That kind of proceeding always defeats its own object.