Page:The Green Bag (1889–1914), Volume 13.pdf/90

 The Restoration of THE RESTORATION OF WHIPPING AS A PUNISHMENT FOR CRIME. BY HON. SIMEON E. BALDWIN, L L.D. ABOUT the middle of the last century a wave of humanitarian sentiment rolled over the civilized world. It began in the United States and ended in Europe. It brought with it many good things. It left behind it also a certain amount of sediment. Part of this sediment was a mushy concep tion of the relations of criminals to society. What was society to do with them? Were they, after all, very much in fault? Had they not been children of evil, by inheritance from ancestors for whose rascality or its con sequences they ought not to be held respon sible? What right had one man to punish another? Was that not an affair that be longed solely to God? Under the influence of such considera tions, whipping was struck out of the crim inal codes of Southern Europe, and of most of the American States. Of late years, it has been reinstated in a few. Has it been rightly reinstated, and has little Delaware been wise in always retaining it? I am one of those who would answer both these questions in the affirmative. I believe that human government exists by the permis sion of God and in some sort represents divine justice on earth. I believe that for grown men the main object of criminal pun ishment should be to punish, and that reformation is a secondary matter, and gen erally a hopeless task. The moral sense of the community de mands that he who has committed some act of criminal violence against his neighbor should be caught and made to smart, for it. The criminal is generally a utilitarian. He has committed the crime because it will bring him, he hopes, a certain good, and at worst can only entail upon him a certain evil. This possible evil is remote and con tingent. The good is immediate. Society

must make the evil heavy enough and dis tasteful enough to outweigh the element of uncertainty and distance. To measure out punishment in all cases of serious crime by so many months or years in jail is to use but a rough yard-stick. A London magistrate of long experience, Sir Edward Hill, once said that long sen tences make very little difference in their deterring influence upon criminals as com pared with short ones for the simple reason that the criminal classes are devoid of imag ination. They do not and cannot picture to themselves the dragging monotony, year after year, of prison toil, or month after month of prison idleness, with that vivid ness and sense of reality with which it strikes an industrious citizen. Whether they are sent up for two years or for twenty seems to them of slight account. No sentence in a county jail, be it long or short, is greatly dreaded by a hardened criminal. It gives him in most cases an assurance of better housing and of better food than he is in the habit of gaining by any other mode of exertion. He has never taken into his soul the full measure of the good of liberty. It is not a good, except so far as its possessor knows how to make good use of it; and that to him was never known, or but half known. On the other hand, whipping is dreaded by every one, man or child. We shrink from it first and most, because- it hurts. It is no degradation to a boy to be whipped by his father, or by his master at school. That is not his objection to it. He feels that it is a reasonable and natural consequence of misdoing, and leaves him better rather than worse. The sailor and the soldier, until recent years, met it in the same way, and with no loss of spirit or loyalty to their