Hal Roth - June 2006

Old News from Delmarva
The Whipping Post in Maryland and Delaware
Part 1 of 2
Hal Roth

     There was a great deal of debate about corporal punishment a few years ago after the public caning of an eighteen-year-old by the name of Michael Fay. The young American was living in Singapore with his mother and was arrested for spray-painting several automobiles. New Yorkers would hardly shrug, but Fay’s misdeeds were a big deal in Singapore, and in accordance with the country’s Vandalism Act, officials there administered six powerful lashes to the lad’s bare butt with a bamboo shaft.
      Liberals the world over went bonkers, but Fay had committed a crime in a country where whipping is the legally legislated penalty for such behavior, and, say what you wish, he will certainly think twice before picking up a can of paint in the future.
      Considering America’s crime rate, there are those among us today who feel that corporal punishment might have greater efficacy here than in Singapore, and it once did.
     “Take it out on the rascal’s hide,” was one of the earliest forms of punishment devised by man. Physical suffering, after all, is something that even the simplest mind can understand. In the belief that it would render them better men, courts throughout the world commonly ordered felons to the whipping post.
      Whipping was considered a “good and sound institution” in England and was quickly put to work in the colonies as “correccon ordained for the fooles back.”
      At the court session held in Boston on November 30, 1630, one man was sentenced to a whipping for stealing a loaf of bread, another for shooting fowl on the Sabbath, another for swearing and another for leaving a boat without a pilot. And about John Pease we read that for “stryking his mother and deryding her he shalbe whipt.”
      In June, 1631, the General Court in Boston issued an order “That Philip Ratcliffe shall be whipped, have his eares cutt off, fined 40 pounds, and [be] banished out of the limits of this jurisdiction, for uttering malicious and scandalous speeches against the Government.”
      It’s a good thing for Teddy Kennedy that he wasn’t around in those days.
      Pious regard for the Sabbath was also fiercely upheld at the post. In 1643 Roger Scott was sentenced to a whipping for “repeated sleeping on the Lord’s Day.”
      A Maine resident named Thomas Taylour, “for his undue familiarity shown in his theeing and thouing Captain Raynes,” was set at the post.
      Slander and name-calling were also punishable by the lash. On April 1, 1634, John Lee was “whipt and fyned for calling Mr. Ludlowe a false-heart knave and hard-heart knave.”
      Six months later the poor fellow was in hot water again: “John Lee shalbe whipt and fyned for speaking reproachfully of the Governor, saying hee was but a lawyer’s clerk, and… also takeing the Court for makeing lawes to picke men’s purses, also for abusing a mayd of the Governor, pretending love in the way of marriage when himselfe professed hee intended none.”
      There is a Boston newspaper account dated August 11, 1789 that tells of eleven men being ordered to the whipping post at the same time. A twelfth prisoner was assigned by the sheriff to inflict the punishment, but when he persisted in being “tender of strokes,” the Sheriff seized the whip, soundly lashed the assigned whipper, then turned to the row of eleven and delivered their sentence. Three cheers, the article reports, arose from the assembled citizens to compliment the officer for the determined manner in which he executed his duty.
      Even young lovers – perhaps the most harmless of humanity – were menaced with the whip. Read the following excerpt from Plymouth Laws dated 1638.
“Whereas divers persons unfit for marriage both in regard of their yeong yeares, as also in regarde of their weake estate, some practiseing the inveagling of men’s daughters and maids under gardians contrary to their parents and gardians likeing, and of maide servants, without the leave and likeing of their masters: It is therefore enacted by the Court that if any shall make a motion of marriage to any man’s daughter or mayde servant, not having first obtayned leave and consent of the parents or master soe to doe, shall be punished either by fine or corporall punishment, or both, at the discretions of the bench, and according to the nature of the offense.”
      The New Haven Colony was equally severe about such “inveagling” and spelled out the details thusly: “…whether accomplished by speech, writing, message, company-keeping, unnecessary familiarity, disorderly night meetings, sinfull dalliance, gifts, or in any other way.”
      Though some jurisdictions excluded the delicate sex, women have also been fair game for public chastisement. “The gift of prophecy” was once punishable at the whipping post in Boston, as was “unwomanly carriage.”
      Launderers and launderesses who “dare to wash any uncleane linen, drive bucks [haven’t a clue what that means], or throw out the water or suds of fowle clothes in the open streetes” were severely whipped.
      And we read the following about a sentence rendered on February 30, 1638: “Anne ux. Richard Walker being cast out of the church of Boston for intemperate drinking from one inn to another, and for light and wanton behavior, was the next day called before the governour and the treasurer, and convicted by two witnesses, was stripped naked one shoulder and tied to the whipping post.”
      In 1664 Major Robins brought suit against Mary Powell for “scandalous speeches against Rev. Mr. Teackle,” for which she was ordered to receive twenty lashes on her bare shoulders and to be banished from the country.
      The following entry appears in the Connecticut Court: “May 12, 1668. Mary Wilton, the wife of Nicholas Wilton, for contemptuous and reproachful terms by her put on one of the Assistants, are adjudged she to be whipt 6 stripes upon the naked body next training day at Windsor.”
      The diary of Anna Green Winslow, a Boston girl of twelve, gives a detailed account of the career of one Bet Smith, sentenced in turn to the workhouse, the gaol [jail], the whipping post and thence to the gallows, “where she behaved with great impudence.”
      Those are only a few of the thousands of reports of corporal punishment from a time in our history when capital crimes numbered more than three hundred, and citizens were sometimes hanged for offenses as trivial as stealing items that exceeded a shilling in value.
      The beating of prisoners came under severe criticism after the Revolution. The practice was banned by Pennsylvania as barbaric in 1794, and enlightened states throughout the world had pretty much put an end to corporal punishment by the turn of the twentieth century, except for Maryland and Delaware.
The whipping post figured prominently in Maryland justice as far back as 1715, when a law was passed providing that anyone convicted of stealing goods up to the value of 1,000 pounds of tobacco should be placed in the pillory and whipped with not more than thirty stripes. Although the sentence could be imposed upon whites and blacks alike, it was applied mostly to African Americans.
      In 1809 the whipping law was repealed as far as whites were concerned, but owners of slaves had authority to lash them until slavery was abolished in 1864.
In 1881 a Mr. Bergh, who somewhat ironically happened to be president of the Society for the Prevention of Cruelty to Animals, was asked to speak at an assembly called for the purpose of considering ways to make prison confinement less rigorous.
      He was quoted in an edition of the Denton Journal:
     “A great deal has been said about improving criminals. Let me tell you how I would improve them. I would abolish all the penitentiaries in the land and save the expense of running them. In their place I would have whipping posts everywhere. [He had to pause at this point to let the cheers subside.]
     “And to make sure that the lash was laid on feelingly, I would offer a reward for the invention of a steam machine that couldn’t be bribed with offers of political place or money. [Laughter.]
     “No man has had a better opportunity to see what criminals are made of than I have had, and I tell you that hundreds of them commit crime to be sent to the places which you provide for their comfort. They are warm and clean there; they get good soup and nice potatoes, and everything which hard working and honest men and women can’t get in your tenement houses.”
      The speaker noted that Maryland was in the process of constructing a “House of Correction” for several million dollars, “while in every county of Delaware there is a small structure [the whipping post] costing no more than $25, which puts down more thieving and villainy than such an institution ever will.”
      Bergh concluded by saying: “Christian people, at least, might be expected to remember that the only criminal code which has any claim to a divine origin, relied mainly in dealing with criminals upon the death penalty and the lash. Have all the American States (grand little Delaware alone excepted) grown wiser on this subject than the Bible?”
      The Bible, of course, has provided sanction for corporal punishment over the centuries to both families and courts:
     “He that spareth his rod hateth his son: but he that loveth him chasteneth him betimes.” (Proverbs 13:24)
     “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.” (Proverbs 23:13, 14)
     “Chasten thy son while there is hope, and let not thy soul spare for his crying.” (Proverbs 19:18)
     “The rod and reproof give wisdom: but a child left to himself bringeth his mother to shame.” (Proverbs 29:15)
      The quote that most legislators of whipping post bills have referred to is: “And it shall be, if the wicked man be worthy to be beaten, that the judge shall cause him to lie down, and to be beaten before his face, according to his fault, by a certain number. Forty stripes he may give him, and not exceed….” (Deuteronomy 25:1-3)
      The ancient Jews, it appears, were scrupulous about not proceeding to the fortieth lash, but always deducted one. In Delaware, a common sentence was thirty-seven.
      At the time Mr. Berg was speaking, the State of Maryland was actually in the process of considering a reinstatement of the whipping post for minor offences, and there was much public and editorial support throughout the state.
      One such article pronounced: “The people who read the draft of the memorial sent to the Legislature by the foreman of the recent Grand Jury were no doubt surprised at this commendable attempt to call back from the past a method which in its day was condemned as brutal, cruel and a miscarriage of justice. In the balmy days of the whipping post, the stocks and the ducking stool, there was a prejudice in the minds of the people against all three methods of punishment. So closely connected were the people with the theories of witchcraft, as the stories of its wonderful deeds drifted down from Massachusetts, that they closely associated the whipping post and the pillory with the doings of the devil and his saints. The days of superstition have passed now, however, and the whipping post will be warmly welcomed back.
     “This memorial pleads that the great number of trivial cases that arise from time to time are of too petty a nature to demand the time of the court and the grand jury and to justify the expense that they create. By giving the magistrates power to definitely determine such cases and to provide the whipping post as a means of punishment for the offenders recommended as a method in the direction of reform, which is calculated to have a wholesome effect. This opinion will be shared by many in this community and, it is hoped, by the members of the General Assembly who so view it. It is a method which could be established in every county in the State with good results and with the direct effect arrived at––the suppression of vice on a small scale and the extermination of that class of criminals who are continually jeopardizing the lives and property of the people, yet who seldom raise courage enough to commit a greater crime than a petty theft or a weak attempt at assault. They are not worth the time and attention of the court.
     “Delaware has clung to the whipping post with a stern faith in its efficacy. In Delaware the wife beater is taught at the whipping post how it feels to be soundly thrashed, and he generally decides after the first punishment that he had better give up wife beating as a bad job. To the criminal there is no more convincing argument for reform than the whipping post. It is a mode of punishment which he feels the full effect of in the most practical manner. Every criminal will shrink from the punishment that is calculated to inflict bodily torture, and with the whipping post before him as a reminder of his fate should he stoop to the perpetration of a trivial offense, he will soon learn to respect himself and obey the law. Punishment by the whipping post is neither brutal nor inhuman. The whipping post could be given a trial at least. Anything in the line of justice that will spare justice the vexatious delays to which it is now subjected by hundreds of trivial cases should be heartily welcomed by every enlightened community.”
      A new Maryland whipping statute was passed by the Legislature of 1882, which read:
     “Any person who shall brutally assault and beat his wife shall be deemed guilty of a misdemeanor, and upon presentment and conviction thereof by any court of competent jurisdiction, shall be sentenced to a whipping, not exceeding 40 lashes, or be imprisoned for a term not exceeding one year, or both, in the discretion of the court.
     “If any court shall order or direct the punishment as aforesaid by whipping, the same shall be administered by the sheriff of the county or city of Baltimore where the judgment shall be rendered, and said sheriff shall administer the same within the walls of the city or county jail.”
      It did not take long for the law to be tested. On December 1, 1882, Charles Foote was convicted for cruelly beating his wife, and the following sentence was entered on the court record:
     “Judgment – To be whipped 13 lashes to be administered by the sheriff within the walls of the jail. Same day sentence reconsidered and sentenced to be whipped seven lashes, to be administered as aforesaid, and 60 days in jail.”
      An appeal was filed, but the Court of Appeals sustained the lower court’s decision, claiming that the stature under which Foote was convicted and sentenced neither violates the Bill of Rights nor the Constitution of the United States, as had been held by his attorney. “The clause ‘nor cruel and unusual punishment’ in the Constitution of the national government,” the upper court held, “is not a restraint upon the legislative powers of the state.”

     To be concluded next month.

     You can reach Hal Roth at nanbk@dmv.com