Go over the subject as we may, we come back to the question, Is the lash or something equally unrefined necessary to accomplish all the law now attempts? It must be looked at in the cold light of certain very sad facts, as well as in the warm blaze of "chromo" civilization. If we are not yet compelled to answer it in the affirmative, there is so much evidence pointing toward such an answer, that it is well to consider very respectfully indeed whatever can be said on the unpopular side. It need not frighten those who accept the idea so tersely presented by the Hare Brothers—of which one is strongly reminded by Mr. Greg in the "Enigmas of Life," although perhaps he does not expressly state it—that the tendency of civilization is to barbarism.
Of course flogging is not a panacea; but it is for those who profit by nothing gentler; and the more enlightened society becomes the more certainly can these be identified. The generous feeling that has discontinued it would not cease to be a guarantee against its abuse. Our courts cannot depart far from public sentiment. We can trust judges and juries to determine who deserves castigation just as safely as to determine who deserves imprisonment or death. Most of the censure they now receive in their treatment of the hopelessly depraved is for their lenity and not their rigor. There is no offender would not dread and wish to avoid whipping. Certainly no one would offend for the purpose of receiving it; and it would probably discourage a man in less than ten years from breaking the same window. It would be inexpensive, and would have the merit of being short and sharp, if not decisive. Punishment, intimidation, is what is here considered, and the point is whether it shall be administered to all who deserve it, or whether the law society finds necessary for its protection shall be a falsehood, at war with itself—a sham. The law cannot shrink from anything that is necessary to its purpose without impeaching its purpose.
And is it more inhuman to hurt the back of one who cannot be made to feel anything else than it is to pain the heart and hurt the soul of one who can? How can Christians so exalt the flesh above the spirit? They did not do it in the primitive days of the faith. Is it more barbarous to scourge the body than to gall it with irons, or poison and debilitate it by confinement, or wear it out by inches at hard labor? We have not abolished corporeal punishment—only rejected a form of it which is frequently more merciful, if more dreaded, than some that are retained.
All wrongs right themselves by "inhumanity," if permitted to go far enough. You are told by good authority, and you know without telling, that if you find a burglar in your house at night, you perform a public duty by shooting him dead rather than see him escape. From the humanitarian point of view, this is certainly more dreadful than it would have been to stop, by flogging, any minor offences that led him into your house. Indeed, if the penalty for the burglary itself were a "barbarous" laceration of his back, it would doubtless have more effect in keeping him from the burglary and from a bloody death, than does the risk of imprisonment. We must not whip him in obedience to the law, but we may safely shoot him dead without regard to it. It is our tenderness that becomes "inhuman" if it be not wisely bestowed. Would it be quite in keeping with the pretensions of "advanced" civilization to see the matrons and maids of the rural neighborhoods going about their dairies and summer kitchens with revolvers in their belts, and bowie-knives in their bosoms? That is the spectacle the "tramp" nuisance promises to produce. Would the whipping-post, set up in the slums of the great cities, where the miscreants among the tramps breed and form their characters, look any more like barbarism? The voluntary tramp has but shown the countryman during the summer what the city suffers during the winter. He is simply trying to distribute and equalize himself, and while enjoying his country air, collects the same taxes he collects all the rest of the year in town. Let the city continue to rear him tenderly, and not hurt his precious carcass, and feed and warm him, and punish only his sensitive spirit, until the country people get down their shot-guns and make a barbarous end of him. And this is being true to the cause of humanity.
It is noble for the law to withhold its hand when one who has taken a wrong step can be won back to a good life by other means; and if the wretches hopelessly saturated with vice can be intimidated by anything milder than flogging, by all means be mild; but when we find one who cannot, why not acknowledge the fact and act on it?
The reason why we do not so act is only a sentimental one. A sentimental reason, however, may be a very good one. Society feels that it is better to suffer, and to see its laws become a mockery to this degree, than to shock its own best instincts. This sentiment that obstructs absolute vindication of the law is respectable so long as it can be respected with tolerable safety and public satisfaction. But it interferes with justice by courtesy, and not by right. It is all very well so long as society does not complain. But if its mouthpieces are to be believed, society does complain. The public is not satisfied with the present punishment of certain offenders—indicated with sufficient accuracy by the tough old Langheimer and the English window-breaker—and is restive under the pecuniary burden they impose.
Although the history of the whipping-post is nearly worthless to one seeking to know what its value might be under all the favorable conditions with which it could be surrounded now and here, yet it is possible to point readily to one trial that should have been, and probably was, a fair one. A very few years ago—perhaps four or five—garroting became a terror to the London pedestrian. For assault and robbery, without intent to kill, the death penalty was too terrible, and the other penalties failed to intimidate, as they generally do when the crime is lucrative, easily accomplished, and not immediately dangerous. It could not be trifled with, and something had to be done. A "barbarous" whipping of the bare back was resorted to, and garroting subsided. The result was what the public wanted. Sentimental eyes may show their whites, horrified hands may go up, floods of twaddle may come forth in sympathy with the discouraged garroter, but men of common sense, especially if they have been garroted themselves, will say the end was worth what it cost, and believe in the inhumanity that achieved it.
Nothing has been said of Delaware. No valuable lesson could be drawn from her without considerable investigation, and perhaps not then. She may do too much flogging, or she may not do enough. Her ministers of justice may be models of enlightenment, or they may be models of debasement. The lash there may be still a class instrument, or it may not. She has no great city—an exceedingly important consideration—and two portions of her people are jostling each other as nominal equals in the race of life, who but the other day held the relation of master and slave. She is probably not indifferent to a good name, and her retention of the whip under all the sneers she receives is some evidence that she at least regards it as still having a defensible use.
Chauncey Hickox.