CORPORAL PUNISHMENT
IN THE
STATE OF DELAWARE
SPEECH
OF
HON. FRANKLIN BROCKSON
OF DELAWARE
IN THE
HOUSE OF REPRESENTATIVES
NOVEMBER 14, 1913
WASHINGTON. 1913SPEECH
OF
HON. FRANKLIN BROCKSON.
CORPORAL PUNISHMENT IN THE STATE OF DELAWARE.
Mr. BROCKSON. Mr. Speaker, on Tuesday last Mr. Evans, of Montana, asked unanimous consent for the present consideration of a resolution which was sent to the Clerk’s desk and read. The resolution was as follows:
House resolution.
Whereas it appears from dispatches published in the public prints that six prisoners—two white men and four negroes—all convicted of robbery, were whipped on their bare backs, with a total of 95 lashes, at the Newcastle County workhouse, in the State of Delaware, on November 8, 1913; and Whereas it further appears that two of said prisoners, .Tames Bayard and William Reason, negroes, each received 20 lashes for burglary; and
Whereas it further appears that on Saturday next, November 15, these two men will each receive a similar number of lashes on the bare back, and in addition Bayard is sentenced to serve 14 years in' prison and Reason 11 years; and Whereas it further appears that the court divided the administration of the lashes for fear the victims could not stand the penalty all at once; and
Whereas the eighth amendment to the Constitution of the United States of America provides that “ cruel and unusual punishments shall not be inflicted ; and W7hereas it is manifest from the fact that the court divided the imposition of the number of lashes for fear of causing the death of the victims that such punishment is cruel; and Whereas such method of punishment is a relic of medieval barbarism and is not generally practiced in civilized countries and is therefore unusual: Therefore be it
Resolved, That the President of the United States and the Attorney General of the United States are hereby authorized and directed to cause to be brought in the Federal courts an injunction proceeding against the State of Delaware, or the officials and employees of such State who may be responsible for the condition of affairs above set forth, or that the President and Attorney General take such other action as in their judgment may be proper to enforce the provisions of the Federal Constitution and prevent the infliction of this cruel and unusual punishment upon these prisoners on Saturday next, November 15, and to prevent the practice of such cruelties hereafter in said State of Delaware or elsewhere in the United States of America.
The House adjourned without action on that resolution. The resolution is so manifestly improper that it is quite certain the House will not adopt it and will probably never consider it.
If the United States courts had jurisdiction in the cases mentioned in the resolution and injunction proceedings were needed, it would not be necessary for Congress to direct the President or the Attorney General to perform their duties in the matter. Nothing more than sending sufficient information to the Attorney General would be required. But the United States courts do not have jurisdiction in these cases, as I will show later.
18037—12530	I desire first to comment upon the statements made in tlie preamble of this resolution.
The statement in the first three clauses are partially correct. I deny all the other statements contained in the preamble. The statement that “ the court divided the imposition of the number of lashes for fear of causing the death of the victims” is absolutely false, and has been made without facts to support the statement.
j	No man’s life is' ever endangered by the infliction of cor-
j poral punishment in Delaware. In the cases of James Bayard and William Reason the court divided the sentences as to the lashes to make the punishment lighter because the defendants are young.
These two men were convicted jointly for breaking and entering the dwelling house of Mr. Reybold in the nighttime with the intent to commit a felony, and for breaking and entering another building, not a dwelling, during the same night. Bayard was also convicted of committing an assault during the same night, r* While those two felons were in Mr. Reybold’s house that ' night Bayard went to the bed in which Miss Iieybold was asleep and had his hand upon her stomach when she was awakened by him. She ran from the room frightened almost into hysterics v and aroused her brother, who rushed to her rescue.
Bayard struck Mr. Reybold with a brick, cutting a gash over his forehead, and escaped from the house.
For all these offenses Bayard was sentenced to 13 years’ imprisonment and 40 lashes. Reason was given 11 years and 40 la slies
I say, individually and for the State of Delaware, that I have no apologies to make to the gentleman from Montana [Mr. Evans] and to no other man from any other State in the Union for the infliction of that penalty upon a man who will go in the nighttime into a house to commit felony and go up to a j young woman lying in bed and take hold of her, undoubtedly i for tlie purpose of committing a rape, and then assault and beat the brother who undertakes to defend his sister in the nighttime in her own bedroom. When you say to, me that corporal punishment is cruel to a brute like that, I deny it, and say that the judgment of the man who alleges it is warped.
I know that there is an honest difference of opinion about corporal punishment, and I concede to those who honestly believe corporal punishment should be abolished the right to hold to that opinion. But I do contend that they should hold to that opinion in their own States; or, if they want to publish it abroad in the newspapers, and go around and make speeches, when they have nothing else to do, and advocate such a doc-, trine as that, I have no objection. But when they come to I another State and say, for example, that the State of Delaware shall treat a criminal such as this one as though he were a hero, I protest. [Applause.]
, Let us look at the ridiculousness of it, to carry out the idea 1 of those “ palace-prison ” people that some folks waste their time in talking about. Would you take that man up before the court and say to him, “ Now, Bayard, you knew that house did not belong to you. You knew very well that when you went into that house you committed trespass, and you made a greater 18037—12530mistake when yon went up into tlie room where that young girl lay. She had a right to be there undisturbed. That was an awful mistake, Bayard. You put your hand on her, and that was another great mistake. You were trespassing on her rights; you ought not to do that; you ought to be good. Stay in your own home. Now, we are going to be lenient with you; you are a young man. Mind, you only did that undoubtedly with the intent to rape her. What else did you go and put your hand on her stomach for? Not to get money. The girl was undressed, lying in bed. No; we have pity on you; we are going to turn you out after we put you in jail a couple of years, and we want you to be a better man.”
The absurdity and ridiculousness of talking in that way to a brute that has lost his manhood! We deal with such felons in Delaware as we have been taught through all ages. We make the punishment fit the crime. Having done so, we are willing to compare the records of our criminal courts with any other State in the Union.
I will make a guess right here. I do not know the six men mentioned in the ’resolution. I simply have the general information concerning them obtained from home and the newspapers, but I guess now that four out of these six men were not born in the State of Delaware. I guess further that when these six men have served out their terms and leave the prison that not more than one, if any of them, will ever be convicted again in the courts of Delaware.
A large per cent—yes; I believe 75 per cent—of the violent crimes committed in tlie State of Delaware are committed by foreign criminals. Keep your criminals at home and our court record will be even better than it is now after we have taken care of the criminals that have come into our State from other States.
We had an example of lax punishment a few years ago, to the sorrow of our State. A man had committed rape, I am informed, in a neighboring State and had served five years in the penitentiary. He came into the State of Delaware, and within a few months he committed the most horrible rape in the annals of history. There was a man that they had dealt with leniently to let him come into our State and ravish and mutilate the body and murder one of our girls.
I am willing to compare our criminal code and penal institutions, if you please, with those of any other State in the Union. \YTe have a law that provides for probating a criminal. If these men had committed a crime that was not violent, they might have been probated under certain conditions. We have a law providing for youthful offenders for first offense, that they may be probated, upon giving a recognizance, with or without security. We also have a law for the first offense, not capital, no matter how old the man may be; if he can show previous good character, he may be probated. We also have a law providing that a man convicted of any offense for which whipping may be a part of the sentence, and is recommended for mercy by the jury, may have the lashes omitted.
These two felons had their day in court; they had their chance before a jury. I want to say to you that when a man has had his day in a Delaware court before 12 Delaware citizens and the court of Delaware has pronounced sentence upon 18037—125306
him, I assure you gentlemen that justice, and nothing more nor less, has been meted out to that man.
Now, I say that these two men when tried, if they had been recommended for mercy by the jui’y, might have had the lashes remitted; but they were not recommended for mercy, and I would have been ashamed of any jury that would have recommended such felons for mercy. I do not have to blush for shame for anything of that kind, because a Delaware jury never does recommend such felons as those for mercy.
I want to read to you our law about probation and see whether a man does not have a fair chance. The law is as follows:
In any case in which a person is convicted before the court of general sessions in this State of any offense not capital and no previous conviction is proven against him, if it appears to the £ourt that, regard being had to the character and antecedents of the offender, to the nature of the offense, and to any extenuating circumstances under which the offense was committed, it is expedient that the offender be released on probation of good conduct, the court may direct that he be released on his entering into a recognizance, with or without surety, and, during such period as the court may direct, to appear and receive sentence when called upon, and in the meantime to keep the peace and be of good behavior; and the court may, if it thinks proper, direct that the offender shall pay the costs of the prosecution or such portion of the same as may be directed by the court. At any time within the period mentioned in the recognizance, but not afterwards, the court may, upon being satisfied by information on oath that the offender has failed to observe any of the conditions of his recognizance, issue process for his apprehension, and thereupon, without any further proceedings, impose sentence upon him.
The court also, in such cases as it shall deem proper, where a defendant has pleaded guilty in any case before it of any offense not capital, in view of the antecedents and character of the offender, of the nature of the offense, and of any extenuating circumstances, may allow such person to withdraw such plea of guilty and may release such person on probation of good conduct upon his entering into a recognizance, with or without surety, and during such period as the court may direct to appear and stand trial when called upon, and in the meantime to keep the peace and be of good behavior. At any time within such period, hut not afterwards, the court may, upon being satisfied by information on oath that such person has failed to observe any of the conditions of his recognizance, issue process for his apprehension, and thereupon order him to stand trial for such former offense. (See 2G Del. Daws, 721.)
We do have the whipping post In Delaware for several offenses, offenses which are of high grade and of such brutal character as to indicate the depravity of the felon. We have whipping for wife beating, for assault with intent to commit rape, for breaking and entering the dwelling house of another in the nighttime with intent to commit a felony, for robbery, and for larceny. We have those penalties provided for in our law, and, as I have said before, we have no apology for their being there. We knowr they have served a useful purpose in the past, and we believe that they will serve a useful purpose in the future.
Corporal punishment has been a means of correction throughout all ages of recorded history. We have authority for its beginning as far back as the Bible itself. All through the Bible we are taught that corporal punishment does have a good effect.
In Exodus xxi, 24, 25, we find: “ Eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.”
In Proverbs xxiii, 13, 14, we are commanded: “ Withhold not correction from the child: for if thou beatest him with the rod, he shall not die. Thou shalt beat him with the rod, and shalt deliver his soul from hell.”
18037—12530And in Hebrews xii, 6, it is written: “ For whom the Lord loveth he chasteneth, and scourgeth every son whom he re-ceiveth.”
I know in this advanced age we have people who undertake even to get around the Bible teachings. They undertake to ignore the teachings of not only their own forefathers, but of people of all generations. My colleagues, I am not here to preach a sermon, but I want to say that the Bible and its teachings have stood through too many ages for any man with his limited intellect to undertake to dispose of it. I say you are traveling on dangerous ground when you undertake to dispose of the Book that has been the foundation upon which every Civilized nation has had its beginning, following the teachings of which Book man has become civilized. In countries where they have not the Bible they lack civilization.
As to tlie punishment :
The object of punishment is to reform the offender, to deter him and others from committing like offenses, and to protect society. (See 2 Bouvier's Law Dictionary, p. 790.)
Sir William Blackstone, in his Commentaries on the Laws of England, said:
As to the end or final cause of human punishments. This is not. by way of atonement or expiation for the crime committed ; for that must be left to the just determination of the Supreme Being; but as a precaution against future offenses of the same kind. This is effected in three ways—either by the amendment of the offender himself, for wnicn purpose all corporal punishment, fines, and temporary exile and imprisonment are inflicted ; or by deterring others by the dread of his example from offending in the like way *	*	*, or, lastly, by depriv-
Party injuring of the power to do further mischief; which is effected by either putting him to death or condemning him to perpetual confinement, slavery, or exile. (See 4 Bl. Com., 11.)
,	wllil°	considering a sentence imposed under the Philippine
law, Mr. Justice White, who is now Chief Justice of the Supreme Court of the United States, said :
“ Of course, in every case where punishment Is inflicted for the commission of crime, if the suffering of the punishment by the wrongdoer do alone regarded, the sense of compassion aroused would mislead and render the performance of judicial duty impossible. And it is to be conceded that this natural conflict between the sense of commiseration and the commands of duty is augmented when the nature of the crime denned by the Philippine law and the punishment which that law prescribes is only abstractly considered, since the impression is at once produced that the legislative authority has been severely exerted. I say only abstractly considered, because the first Impression produced by the merely abstract view of the subject is met by the admonition that the duty of defining and punishing crime has never in any civilized country been exerted upon mere abstract considerations of the inherent nature of the crime punished, but has always involved the most practical consideration of the tendency at a particular time to commit certain crimes, of the difficulty of repressing the same, and of how far it is necessary to impose stern remedies to prevent the commission of such crimes.” (See Weems v. United States, 217 U. S., 349.)
I want to say to you that punishment in Delaware is not inflicted by way of revenge. We hold revenge against no man. ltevenge belongs to but One, and that is the Supreme Being above. [Applause.] We do not attempt to arrogate to ourselves the right of revenge. Like other men, when we see the criminal in the dock before the judges and the jury we pity him. Our hearts can not help but beat with sympathy for him. So they did for these brutes that have brought up this discussion; but, my friends, we do not let our pity take away our judgment. After a fair, full, and free trial, if a man is convicted by 12 men of the county, the sentence is meted out 1S037—125308
to him such as the law directs; so that if, perchance, it be possible, to reform him, protect society, and deter others from like offenses.
Permit me to say that I know that the whipping post of Delaware is a terror to offenders of the law. I have practiced law in the courts of Delaware for more than 16 years, and have had a considerable practice in the court of general sessions and the court of oyer and terminer. My experience has been, as has been the experience of other lawyers, that after counseling with the defendant, if his case be desperate and the facts presented such that I had to advise him that he would be convicted, the very next request on the part of the defendant would be to have the lashes omitted, if possible. They would be willing to agree to practically any number of months, as much as a year or more, for the sake of having 10 or 20 lashes omitted; but in one case as in another no such agreement was made, but each criminal was adjudged and the sentence imposed according to the law. I merely speak of it to show you that the criminals know of the law. In many cases the lashes are omitted. If it is the first offense, and some man can give the criminal a good reputation, in most offenses less than capital the lashes are omitted, or if the prisoner be youthful and it be his first offense they are omitted. There are a number of other extenuating circumstances specified in the law. Let me go further right here. The State of Delaware has never permitted any man to be lashed at the post when there was danger of bodily injury or death.
If a man comes not within any of these provisions of the law, be an old offender, and his health be poor, the board of pardons and the governor have always come to his relief and saw to it that he was not whipped if his health would not permit it. And the whippings that are administered are administered in an orderly, reasonable manner, so as not to inflict any personal violence or injury.
Now', I want to go further along the line to prove that the whipping post of Delaware is a deterrent to criminals.
George Black, chief of police of Wilmington, Del., made an address before the International Association of Police at Toronto, Canada, in July, 1012, in which he said:
It is the opinion of myself—and I am sure I do not misrepresent the facts when I say that this opinion is shared hy a large portion of our best thinking people—that the whipping post as now established under the laws of the State of Delaware has done and is doing much toward keeping a certain ci'iminal class out of our midst. It has been many years since our city has been visited by any of the class known as “ the expert criminal class,” and I believe that it is the fear of the whipping post that keeps them away.
Many misleading statements have been sent out broadcast throughout our country in regard to the severity of the punishment at the whipping post, and I have no doubt these reports have caused a great misunderstanding in regard to the law in relation to the whipping post as administered in our State. Only a few months ago the report was spread far and near that great cruelty had been perpetrated by one of our wardens in carrying the law into effect.
This report was absolutely false in every particular and was a piece of sensational yellow journalism pure and simple. In no instance since I have occupied my position as chief of police have I known of any brutal whipping that has ever taken place in our State. The present warden who now administers the lashes in my county is a most humane man. and under no circumstances would he or could he inflict the kind of punishment as represented by these false and wicked reports.
18037—125309
Now, mark yon, my colleagues: At the conclusion of liis address Mr. Pinkerton, of Chicago, said:
I have listened with a great deal of interest to the paper read by Chief Black. I have always been an advocate of the whipping post for certain offenses. I think to-day that to the wife beater and the night prowler—men who enter houses where there is a. sleeping raunly for burglary or theft—the whipping post should be applied. After an experience of 40 years among this class of people I want to say that I don’t know of a burglar who would not kill. There were four crooks that I knew—Jim Brady, Joe Killoran, Jimmie Good, and James Hope-well—dude burglars they used to call them, whose game was to hold up the family of the cashier of a bank and make him give up the combination of the safe. They were caught at that game, tried and convicted in Delaware, and sentenced to 40 lashes each on the bare back. These people were well known in New York, and when the people in New York heard of the sentence they said, “ My God, they are not going to whip them.” But they did ; they whipped them just like they were a lot of slaves. From that day to this there has been less burglary in the State of Delaware than in any other State you can name in the United States.
And I want to say to you that within my memory there has not been a hank burglary or serious holdup in the State of Delaware. After the speech of Mr. Pinkerton, Chief McKenna, of Waltham, then said:
I happened to be in Delaware at the time mentioned by Mr. Pinkerton, and I remember the remark made at the time by Brady. Brady made this remark after he got through being whipped, that he hoped to God that Delaware justice is satisfied now.”
Well, he was satisfied with it; he never returned to Delaware to commit another crime.
President Roosevelt, in 1904, in a message to Congress suggested the enactment of a law to provide corporal punishment for certain offenders. He said in that message:
There are certain offenders whose criminality takes the shape of brutality and cruelty toward the weak who need a special type of punishment. The wife beater, for example, is Inadequately punished by imprisonment, for imprisonment may often moan nothing to him, while it may cause hunger and want to the wife and children who have been the victims of his brutality. Probably some form of corporal punishment would be the most adequate way of meeting this kind of crime.
I have not had an opportunity to collect recent statistics as to the commission of crimes in the several States. I have not had an opportunity to collect more recent comments, but they aro numerous. I have read them, and so have you. There have been numerous statements, substantiated by proof, as to how crime is increasing in States where the punishment has become lax. While a majority of people seem to have gone too far in their laxity, yet the subject is now being seriously considered in the minds of the people of the country and the minds of gentlemen sitting here in this House. Many believe we have gone too far with laxity and that corporal punishment for these brutal offenders should be restored.
William Tallaek in his Penological and Preventive Principles, speaking of the effect of cruel laxity, said:
As to other crime, in general, the experience of America has been similarly unfavorable. American crime has increased during the last .half of the nineteenth century far beyond the proportion of increase of the population. And this is not at all to be wondered at. For our purpose we take tlie case of an honest workman, say in New York or San Francisco, toiling from morning till night, just able to get a living, with but few comforts and little amusement for himself and his family, lie may have for a neighbor on one side a lazy, thievish loafer who never works, and on the other side a violent bully, guilty of cruel assaults on man and beast and of indecent outrages on women and children. Yet is it not a fact that if either the loafer or the bully is sent 18037—1253010
to an American prison, the chances are at present that he will there find comforts of dietary, recreation, music, newspapers, novels, gymnastics, and professional teaching even in the higher branches of education which tlie honest worker can never hope to obtain? And not only so, but tlie bully and the thief, if obliged to work in prison, will probably be put to labor of a lighter character and shorter daily continuance than the other, and, perhaps, also, be trained to some fancy trade or profitable art. which he too, would most gladly learn.
Is such a system calculated to discourage the violent and the vicious, or, rather, to attract toward crime and pauperism the still honest toilers on the border land of temptation?
On both sides of the Atlantic this course has found plausible advocates. But their voices appear to have met with much more attention hitherto in America than in Europe.
The American people seem to be at last becoming conscious of the disastrous results of their penal system, for in 1805 there was a chorus of complaint from influential journals throughout the country, most of them demanding the introduction of corporal punishment in place of the prison failures and even of the “ model ” or collegiate and hotel prisons ” of the United States.
Thus the New York Tribune (1895) said:
A bill was recently offered in the legislature to punisli with whipping men who inflicted brutal physical ill-usage on others. It was generally commended as the best means of dealing with this class of people. A little humiliation and phvsical pain has been shown to be more effective in dealing with tlie cowards who do not hesitate to inflict pain than any other method of punishment yet devised.
The Detroit Free Press (1S95) remarked:
Under existing laws a brute in human form, who has no sentimentalism about the barbarities of the past, can maim a woman or child and get off witn a few months or years in prison, where he will be well fed and cared for. He can use the lash or the bludgeon, hut the State must not retaliate upon him, even for tlie sake of deterring others from imitating him. It has long been thought by the practical that this is sentimentalism run mad.
The Atlanta Constitution (1S95) observed:
The fetish of “ humanity ” must be bowed to and the greater inhumanity be perpetrated, of taking away live years of a man’s life, than giving him a good strapping and letting him go with the injunction that the application will be redoubled on bis next appearance.
The Washington Post (1895) wrote:
The creature who cruelly maltreats his wife or other female dependents is in nine cases out of ten a worthless vagabond, an habitual criminal and outlaw, for whom the prison or the workhouse has no terrors whatsoever. He will serve his term under circumstances of greater physical comfort than he is accustomed to at home, and then return to freedom to resume his hideous brutality without fear of, if not actual relish for, the consequences. Meanwhile the forlorn creatures who are subject to his evli moods have absolutely no protection. They lead lives that the dumb brutes would shrink from.
Other contemporary journals expressed themselves similarly. It may be hoped that while discriminative mercy may be increasingly shown to the pitiable and unfortunate class of American offenders a more effective humanity may also be extended to the oppressed violated victims of cruelty through the community by giving to the ruffians who outrage them a penal treatment which shall have the truly beneficent effect of reforming them by intimidation and real restraint.
No one doubts but that tlie hope of reward and the fear of punishment are the two levers that move mankind to action. Now, I desire to direct my attention to the legal phase of this question, which has been settled so long that I am surprised that any man would raise it to-day in this House or elsewhere, namely, as to whether or not the eighth amendment to the Constitution of the United States is a limitation upon the powers of a State. Mr. MOON. Mr. Speaker, will the gentleman yield? The SPEAKER. Does the gentleman from Delaware yield to the gentleman from Tennessee?
1S037—12530Mr. MOON. I just want to make an inquiry. Will the gentleman yield?
Mr. BROCKSON. I do.
Mr. MOON. Do you still have the pillory, the stocks, and cropping and branding as punishments in the State of Delaware?
Mr. BROCKSON. We do not; and never have had any of them in the time of my memory, except the pillory.
Mr. MOON. But you did have them, as a matter of fact.
Mr. BROCKSON. Not within my memory.
Mr. MOON. Not in your memory; but all those States had those methods of punishment, but now they have abolished them. Can you tell me why?
Mr. BROCKSON. Because they are cruel.
Mr. MOON. Are they any less cruel than the flogging of a man with 40 licks until the blood corhes to the back?
Mr. BROCKSON. No, sir; and we do not flog any man with 40 lashes until the blood comes to his back; and I defy any man to name a man who ever had the blood cut out of liim in Delaware.
Mr. MOON. That may be true; but you can by law do so. I will remind the gentleman of a thing I once saw in reference to his State. I do not know whether it is true or not; but not many years ago a cartoon was published in all the papers showing where a young, delicate woman was by law flogged by a negro constable in the gentleman’s city of Wilmington, Delaware.
Mr. BROCKSON. That never occurred. We never had a negro constable in the State of Delaware in the history of the State.
Mr. MOON. Oh, yes you did.
Mr. BROCKSON. Not in my time.
Mr. MOON. Oh, yes. Perhaps not in the gentleman’s time, but in fact.
Mr. BROCKSON. What is the first part of the gentleman’s question?
Mr. MOON. This is the point I wanted to make to the gentleman, that----
Mr. BROCKSON. I want to make this clear, too. We do not whip women in Delaware. The law especially exempts them.
Air. MOON. What led you to exempt them? Was not that in obedience to the promptings of an outraged public conscience that you quit whipping women?
Mr. BROCKSON. 1 do not know that we ever whipped women.
Mr. MOON. Then the gentleman does not know about the State of Delaware very well. I just wanted to make this point to the gentleman---
Mr. BROCKSON. Let me answer the gentleman’s question. It might have been at a time when men did not consider women as women, but considered them as servants and slaves. But since women have been advanced to womanhood in the State of Delaware they have not whipped them.
Mr. MOON. Not in recent years.
Mr. BROCKSON. They have not whipped them for many years.
Mr. MOON. But this is the point I want to make, that the pi.lory and the stocks and branding and cropping, which were 18037—12530cruel forms of punishment, have been abandoned in Delaware. Then how can you justify a punishment by whipping, which to the mind of almost every ordinary citizen appears equally as cruel and inhuman as the stocks, the pillory, or branding?
Mr. BROCKSON. I will ask the gentleman a question in reply.
Mr. MOON. Oh, do not play the Yankee with me, but answer my question.
Mr. BROCKSON. I yielded to the gentleman for a question. Take a man that has a boy 1G years old, weighing 140 pounds, and the father asks the boy to go to the barn and gear a horse and carriage and bring them to the house. That boy says to the father, “I am going to town; you can go to hell and get your own horse.” Would it be cruel for the father to take that boy out and lash him a little?
Mr. MOON. Not if he corrects him in a parental way.
Mr. BROCKSON. Then, why would it be cruel for the State to administer the same kind of punishment?
Mr. MOON. That is not the question. The reformation of a man or a citizen------
Mr. BROCKSON. Seventy-five per cent of the crimes committed in the State of Delaware are by criminals who come from other States ------
Mr. MOON. When a father corrects a boy, it is done for the benefit of the child; it is done in love and affection for the child; it is not done cruelly; if so, he violates the law; it is not done as a means of punishment of the character that is inflicted upon the prisoner by the State of Delaware. A punishment is something that is inflicted in enlightened States, in all the other States of the Union----
Mr. BROCKSON. Does the gentleman from Tennessee mean to say that the State of Delaware is not enlightened?
Mr. MOON. I say that the punishment is for the reformation of the criminal. It is a method of reformation; the prisoner is supposed to be taught better; he is to be put under circumstances and conditions to enable him to become a better citizen when released from the prison, because he is not supposed to be punished except by deprivation of liberty and under conditions that are supposed to reform him.
Mr. BROCKSON. Mr. Speaker, I yielded for a question.
Mr. MOON. When he comes out he is supposed to be reformed.
The SPEAKER. The time of the gentleman from Delaware has expired.
Mr. MANN. I ask unanimous consent that the gentleman from Delaware have 30 minutes more.
Mr. MOON. I ask unanimous consent that the gentleman’s time be extended, as I have taken up some of it.
The SPEAKER. The gentleman from Illinois and the gentleman from Tennessee both ask unanimous consent that the time of the gentleman from Delaware be extended 30 minutes. Is there objection?
There was no objection.
The SPEAKER. Now, does the gentleman from Delaware yield to the gentleman from Tennessee?
Mr BROCKSON. For a question.
Mr. MOON. I had only a word more to say, and I am sorry I have taken up so much of the gentleman's time. The higher 18037—1253013
and better sentiment of people upon the question of punishment is not to inflict a punishment upon the unfortunate prisoner for what he has done, but to bring about conditions In his life that will enable him to reform and become a better member of society. If the offense is so great that this reformation can not be produced, then the death penalty is fixed or life imprisonment is fixed. Corporal punishment has never been thought in recent years—and there is no reflection upon the gentleman-----
Mr. BItOCKSON. I did not yield for a speech. I hope the gentleman will conclude his question.
Mr. MOON. If the gentleman declines to answer-------
Mr. BROCKSON. I do not decline if the gentleman wTiil put his question.
Mr. MOON. I am stating the reasons leading up to my question, then I am going to put the question.
The SPEAKER. Does the gentleman from Delaware decline to yield?
Mr. BROCKSON. No; not for a question.
Mr. MOON. If that is the theory in all the other States, if that is the policy being pursued by all other States for that purpose, does not the gentleman think that Delaware is a little behind the times when she does not follow in the same trend, but resorts to the inhuman and brutal system of beating and destroying the body of a human being because of a violation of law?
Mr. BROCKSON. I will answer the last part of the gentleman’s question first. We do not destroy the human body. We do not injure the human body. We are not behind tlie times; we are standing for the right and the best good of humanity, and have not been led off by sentimentalism about palace prisons in this country. [Applause.]
Mr. MOON. May I ask the gentleman if there is any other State in the Union that maintains his position?
Mr. BROCKSON. I do not know how many and I do not care, so long as we are right. I am willing to stand by the right. I have not had time to investigate that question.
Mr. MOON. I will advise the gentleman that there is not, in my opinion.
Mr. BROCKSON. I will advise you that the State of Maryland does, and I will give the reference and you can read it from the book.
Mr. MOON. I will take the gentleman’s word for it if he says so. It is so close to Delaware that I am not surprised.
Mr. BROCKSON. They are benefited by good association because of Delaware. I want to paint you a picture which the gentleman from Tennessee [Mr. Moon] would have us witness. Co down in the District of Columbia and find out one of those 500 cases of wife beating which were talked of here a few years ago. Co into an alley and find there a woman burdened down with three children and a worthless brute of a husband. That woman is going out working eight or nine hours a day and comes back home at night tired and weary. There are those children to feed and clothe. She tries to feed and clothe them, and that brute of a husband makes her give him a part of the money which she earns. She comes home one night and does not give that brute as much money as he would like to have. This is the full of the year. That man proceeds to pick up a chair and beat 18037—12530and smash the head of that woman, already tottering with her attempt to keep the family together. Then, following out the gentleman’s idea, he would have us arrest that man and put him in the dock, make a hero or a martyr out of him, send him to a palace prison for the winter, furnish him entertainment, give him newspapers to read, give him more comforts and better food than the wife at home has, and then say to me that that is justice. Well, my colleagues, that might be justice in Tennessee, but, thank God, it is not justice in Delaware. [Ap-1 plause.]
Mr. SMITH of New York. Mr. Speaker, will the gentleman yield?
Mr. BROCKSON. Certainly.
Mr. SMITH of New York. According to the gentleman’s statement there are seven cases now pending in Delaware where corporal punishment is to be administered.
Mr. BItOCKSON. Six.
Mr. SMITH of New York. If that is the fact, does it not indicate that corporal punishment has not stopped these brutal crimes? In a little State like Delaware you have six cases at the present moment in which that kind of punishment is to be administered.
Mr. BItOCKSON. What State is the gentleman from?
Mr. SMITH of New York. New York.
Mr. BItOCKSON. How many do you have within that time? [Applause and laughter.]
Mr. SMITH of New York. We have quite a number more in the State of New York because the State is somewhat larger than Delaware.
Mr. BROCKSON. Was the gentleman here when I referred to the four New York State criminals that came to Delaware?
Mr. SMITH of New York. Oh, yes; we have more of them.
Mr. BItOCKSON. Well, those New York State criminals never came back to Delaware. [Laughter and applause.]
I am asked the question, Does it prevent crime? Within the last 10 days there have been two or more women in this District assaulted by brutal men, with intent to commit rape, one of them in her own home. Two within 10 days! I have not heard of that many cases in the State of Delaware within two years.
I believe there has not been one within the last 10 months. We have very few of such criminals, and when we do get them they are liable to a punishment of 20 years in the workhouse and lashes upon their backs. Such cases do not often happen.
I do not know whether the gentleman from Tennessee was here when I made the first part of my speech, referring to our laws in respect to youthful offenders getting off on first offenses because of good character?
Mr. MOON. Yes; I was here.
Mr. BROCKSON. Then I shall not repeat that. I come now to the question of what is cruel and unusual punishment.
In the general acceptation of law, as laid down by all of the courts, punishments are cruel when they involve torture and lingering death, not a mere matter of a little pain. If you are going to call cruel punishment such punishment as produces pain, then how do you justify your hanging in the State of Montana and in other States in the Union? The gentleman who introduced the resolution comes from the State of Montana, where for murder they hang a man by the neck until he is dead. As a matter of 18037—12530law that is not cruel punishment, but as a matter of fact can any man explain to me wherein there is less cruelty in hanging a man by his neck until he is dead than there is in giving a man a few gentle lashes laid upon the bare back? [Laughter.] If you can. I will yield the argument, and if you can not, then I yyhtend that the conclusion is on my side. Therefore, I say, in aie law punishments are cruel when they involve torture and lingering death.
Unusual punishment in the law is the punishment so long disused, because of its cruelty, until it has become unusual. Whipping has continued for thousands of years, and continues in England and other countries to-day, and in Delaware and in one or more other States of the Union.
It was in existence at tlie time this provision of the Constitution was adopted, has been ever since; therefore it has not been disused for any time, and therefore of necessity is not unusual.
The eighth amendment to the Constitution of the United States provides:
Excessive bail sbail not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
This amendment does not apply to the States of the Union, but applies only to the United States Government.
In the case of Pervear v. The Commonwealth of Massachusetts (5 Wall., 475) Chief Justice Chase said:
The third proposition of the plea is that fines and penalties imposed and inflicted by the State law for offenses charged in the iudictment are excessive, cruel, and unusual. Of this proposition it is enough to say that the article of Constitution relied upon in support of it docs not apply to State but to national legislation.
It has been repeatedly held by the Supreme Court of the United States that the first 10 amendments to the Federal Constitution operated on tlie National Government only and were not intended to limit the powers of the State in respect to the citizens of that State.
In the case of Barron against The Mayor and City Council of Baltimore, when the court had under consideration a provision of the fifth amendment to the Constitution of the United States, Chief Justice Marshall, delivering the opinion of the court, said:
Tlie plaintiff in error contends that it comes within that clause in the fifth amendment to the Constitution which inhibits the taking of private property for public use without just compensation. He insists that this amendment being in favor of the liberty of the citizen ought to be so construed as to restrain the legislative power of a State as well as that of the United States. *	*	*
The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their owu government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for tlie United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this Government were to be exercised by itself : and the limitations on power, if expressed in general terms, are naturally and, we thiuk, necessarily applicable to the Government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments, framed by different persons and for different purposes.
The counsel for tlie plaintiff in error insists that the Constitution was intended to secure the people of Ihe several States against the undue exercise of power by their respective State governments, as well as against that which might be attempted by their General Govcrn-18037—125SO16
ment. For the support of this argument lie relies on the inhibitions contained in the tenth secUon cf the first article.
We think that section affords a strong if not a conclusive argument 'n support of the opinion already indicated by the court.
But it is universally understood, it is a part of the history r-f the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country decmei essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended These amendments demanded security against the apprehended encroachments of the General Government, not against those of the local governments.
In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed b.v_ the required majority in Congress and adopted by the States. These amendments contain no expression indicating qn intention to apply them to the State governments. This court can not so apply them.
That was the law in 1833 laid down by Chief Justice Marshall, and that is the law of the Supreme Court to-day. It is so universally settled that it is useless to take up the time of this body to cite further authority.
Now, in conclusion I want to say that the criminal laws of the State of Delaware have been framed and amended from time to time for the purpose of reforming the criminal, as well as for the general good of the public. But I say to you, in framing the penalties we have not made such penalties as would be pleasing to the criminal. No State undertakes to inflict penalties that will be approved by the criminal. It has been well said—
No man e’er felt the halter draw,
With good opinion of the law.
Now, one more word in regard to the reformation of criminals. In the beginning of my speech I showed where the youthful offender and offenders for the first time have every opportunity that anyone can reasonably ask; but when you come down to the brute criminal, I say to you that he can be better reformed in a cage than he can running loose preying upon the community.
The State of Delaware has made its laws for the benefit of the entire State, for the general good of the law-abiding citizens of that State. The laws of Delaware are constitutional and just. We will not permit other persons or States to interfere with the execution of those laws.
The practice of making martyrs of criminals is a modern curse of society. I have but little patience with any man who permits his sympathy to run with a felon so far as to forget tlie rights of law-abiding citizens of the State. Tlie State of Delaware, being satisfied with the justice of her laws, is willing to demonstrate the principle, if need be, that it is better to stand alone for that which is right than to stand with the multitude for that which is wrong.- [Applause.]
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