Hal Roth - July 2006

Old News from Delmarva
The Whipping Post in Maryland and Delaware
Conclusion

by
Hal Roth

     Maryland’s original corporal punishment ordinance of 1715 was modified in 1808, excluding whites, and the remainder of the law expired with the repeal of slavery in 1864. But because of its long tradition, Biblical sanction, and a strong belief that it was an effective deterrent to crime, the whipping post was reinstated for wife beaters by the Legislature of 1882.
      Liberal opposition to the new law quickly arose, then apparently waned for a time according to this news report from 1899:
     “It may be that the humane people who started the crusade against the whipping post as a mode of punishment have given up in despair, or it may be that they have only suspended their crusade…. Certain it is that the anti-whipping post crusaders are little heard of nowadays, while the contrary minded folks who were stirred by the crusade to give their testimony in support of the whipping post are not yet through talking.
     “The remarks of Judge Simeon E. Baldwin of the Supreme Court of Connecticut, at a recent meeting of the Medico-Legal Society in the city of New York, are of considerable interest. Judge Baldwin on this occasion said:
     “‘I do not hesitate to avow my conviction that whipping would often furnish a mode of punishment far more appropriate than fine or imprisonment for minor offenses and a useful addition to imprisonment for graver ones. While holding criminal terms of the Superior Court, I have more than once had occasion to sentence culprits to confinement in jail whose cases would have been, in my opinion, better fitted by some form of punishment shorter in duration and sharper in pain. No sentence to a county jail 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. On the other hand, whipping is dreaded by every man or child. We shrink from it first and most because it hurts.’”
      Commenting on Baldwin’s remarks, Law Notes, a publication for the legal fraternity, noted two prime considerations that make corporal punishment appealing. One is that such punishment rids the public of the expense of keeping prisoners in custody and the difficulty of properly employing them. The other is that when juvenile offenders are whipped instead of imprisoned, they are saved from association with criminals.
Support for the whipping post was sometimes found in high places, as evidenced by this 1904 article:
     “President [Teddy] Roosevelt’s suggestions that some sort of corporal punishment would be the most adequate way of meeting the crime of wife beating has a warm supporter in Judge I. G. Kimball. Like the president, Judge Kimball believes that imprisonment is inadequate punishment for the wife beater, for the reason that it may mean nothing to him while it may cause hunger and want to the wife and children who have been the victims of his brutality. In a letter he says: ‘This class of offenders are usually unable to pay a fine, and if punished must be sent to jail, where they live the life which to them is perfect happiness––plenty to eat, a warm place to sleep and nothing to do, while the poor wife, in addition to being beaten, has her support taken away and is the real one to endure the punishment. I had a case today where the wife, a small woman, had been beaten all over by her husband, who was a large, brawny man. She told her story to the jury, who quickly brought in a verdict of guilty. The wife then asked me not to send him to jail, for she had two small children and needed his support. What could I do? I had to grant the wife’s prayer, after giving him a severe talking to, which I fear made little impression on him, and I also fear he will believe that he can beat his wife whenever he wants to, and she will get him off.’
     “In response to a comment that wife beating had become an ‘unusual offense,’ Judge Kimball took issue. ‘The fact is,’ he said, ‘that a day seldom passes in which I do not have one or more husbands before me, charged with wife beating, and hundreds of cases are tried in this district every year, and there is a crying need of a remedy, and in my judgment the whipping post is the best punishment for that offense in most cases.’”
      Typical of statements that appeared in our papers during the early part of the twentieth century––if a bit naïve––is this one from 1908: “Another wife beater in Maryland has been sentenced to the lash. If the reformatory work of the whipping post is kept up, this crime will soon cease to disgrace the state. When a man becomes a brute, only physical arguments appeal to him.”
      While movements to abolish the Maryland whipping law were soon again raised, Benjamin W. Fox introduced legislation in 1922 to include whipping for women. The bill in its entirety was intended to counterbalance the equal rights movement for women. Consider some of the articles in Fox’s draft:
     “There shall be in the future no laws passed giving any rights, benefits, or preferences to women that are not guaranteed to members of the opposite sex.
     “It shall be the duty of the wife to contribute at least one half to the expenses of the home and the support of the family.
     “During pendency [sic] of divorce actions where it is shown the husband is dependent upon the wife for support, she must pay for the maintenance of husband and children.
     “The wife may be sentenced to the whipping post for assaulting her husband, but the number of lashes is limited to forty.”
The Baltimore senator went so far as to require that a wife be tried for embezzlement or larceny if she raided coins from her husband’s pants pockets. Fox’s bill, of course, never got off the floor.
      Then, on February 16, 1939, Marylanders found this announcement in their papers:
     “Wife beaters can take a healthy swing at the missus with nothing worse than jail awaiting if the Senate approves the anti-whipping post bill passed by the House of Delegates today.
     “By a vote of 81-27 the delegates voted to abolish the whipping post for wife beaters.
     “Delegate Bertram L. Boone 2nd introduced the measure. Boone said the whipping post had resulted in widespread adverse publicity for Maryland as one of the last strongholds of barbarism.
     “The bill also caused a division in the House when the Judiciary Committee returned its report for second reading. Miss Elizabeth Doub and other women delegates opposed the measure.
     “Efforts have been made to repeal the whipping post statute for eighteen years, but the measure never reached passage in either house until today.”
A vote in the Senate quickly followed and Maryland’s whipping post was history, leaving Delaware the last holdout among our states.
As the following three clippings demonstrate, editorial support for Delaware’s corporal punishment law remained high at the turn of the twentieth century, and First State officials expressed no interest in abandoning it.
     “It is said that the morals of Kent County, Delaware, are improving. On Saturday only two men were lashed at the whipping post. Making the punishment fit the crime has a peculiar application in Kent County. The culprit is not brought up publicly to the post, but the officials allow him to hear the remarks of the crowd, which are often uncomplimentary, and the Kodak men can get all the snapshots desired without charge.”
     “An effort is being made to abolish the whipping post in Delaware. The taxpayers of the Diamond State should see to it that this effort does not succeed. It is one of the healthiest relics of barbarism in this country and drives away thousands of very expensive thieves and vagrants and other dangerous characters.”
     “Chief Justice Lore of Delaware says: ‘The whipping post is the most efficient deterrent of crime known to our laws.’ After pointing out the peculiar situation of the state, which makes it a dumping ground of tramps from railroad trains, many of whom are criminals from the large cities, he says that Delaware would be overrun with them except for their fear of the whipping post.”
      Did Delaware’s whipping post once influence the French penal code? Consider this newspaper article from 1910:
     “Here in the United States there has been a wide-spread delivery of sarcastic comment every time one of the three Delaware jails ties up a horse thief to the historic whipping post and squares accounts with him by literally taking it out on his hide. Delaware has listened to the voluminous lecturing upon the theme of her dark-age barbarism but has defiantly held on to her uncivilized method of dealing out justice. And now the French government, doubtless after a profound study of the Delaware scheme, is proposing seriously to introduce the whipping post as a restraining terror to a certain class of offenders.”
      As Delaware approached the midpoint of the twentieth century, public whippings could still be inflicted as part of the punishment for male prisoners who were convicted of the following crimes:
1. Poisoning with intent to murder;
2. Maiming by lying in wait;
3. Assault with intent to ravish;
4. Wife-beating;
5. Robbery;
6. Assault with intent to rob;
7. Burning a court house or office where public records are kept;
8. Burning a vessel, mill, granary, church, school, etc.;
9. Burglary with explosives, in a building in which there is a human being, in the nighttime;
10. Burglary with explosives, in a building in which there is no human being, in the nighttime;
11. Breaking and entering a dwelling in the nighttime with intent to commit a crime other than murder, rape or arson of the first degree;
12. Breaking and entering a dwelling in the nighttime, with intent; entering by day or night without breaking, with intent; committing a crime in, and breaking out at night; breaking and entering a warehouse, store, office, etc., by night with intent to commit larceny;
13. Larceny of horse, ass, or mule, or larceny by breaking a lock;
14. Bringing a stolen horse, ass, or mule into the state and selling or attempting to sell it;
15. Knowingly buying, receiving or concealing a stolen horse, ass, or mule;
16. Grand larceny, other than that of a horse, ass, or mule, or by picking a lock;
17. Embezzlement by carrier or porter;
18. Embezzlement by a cashier, servant or clerk;
19. Fraudulent misapplication or conversion of funds by executors, administrators, guardians, justices, constables or attorneys-at-law;
20. Making, or having in one’s possession, plates, etc., for counterfeiting, or having unfinished counterfeit notes with the intention of completing them;
21. Willfully and feloniously showing false lights to cause a vessel to be wrecked;
22. Unlawfully obstructing railway tracks so as to make them unsafe;
23. Perjury or subornation of perjury;
24. Tampering with, altering, or destroying legislative bills or acts.
      As its tenure finally grew short, Delaware’s whipping post attracted considerable attention in newspapers around the nation. This article was published on March 8, 1972 in The (Clearfield, Pennsylvania) Progress and includes some interesting history:
     “Forty lashes, well laid on, still can be given to a criminal for any of several dozen offenses in Delaware, the last state to hold onto the pre-Revolutionary War punishment.
     “Despite efforts by groups ranging from prison reformers to humanitarians, state lawmakers have refused time and again to legislate the whipping post out of existence.
     “Earliest documentation shows Robberd Hutchinson was flogged 39 lashes in New Castle County in 1679 for ‘having feloniously broken into a chest belonging to Adam Wallis and stolen from it goods to the value of three pounds sterling.’
     “For nearly 300 years since, the whip has been used as a punishment for crimes ranging from robbery and larceny to wife beating and embezzling.
     “‘It’s a relic of the Dark Ages,’ said Gov. Russell W. Peterson when, in 1969, he ordered the whipping post at Delaware Correctional Institute at Smyrna to be stored in the basement.
     “‘I think it qualifies as a cruel and unusual punishment,’ said Rep. Pierre S. duPont IV, R-Del. ‘I think we’ve passed the point in our civilization where a whipping post is needed.’
     “Some lawmakers have again proposed in a revision of the Delaware Criminal Code now pending before the General Assembly that flogging be stricken from it.
     “But passage of the proposal is by no means a foregone conclusion. Just seven legislative days into the start of this year’s second session, Sen. Thomas E. Hickman Jr., R-Sussex County, proposed an amendment to the bill that would permit ‘for any felony, the court, in its discretion, [could] provide that the defendant be whipped with the number of lashes as the court deems appropriate.’
     “Crowds numbering in the hundreds used to gather at whippings. And they gathered often; over 600 whippings were administered in Delaware from the end of World War I to the end of World War II.
     “Of these, records supplied by the Division of Adult Corrections show about seven of every nine whipped were black.
     “The number of floggings dropped sharply after the war. Records show only five from 1946-1952.
     “John P. Barbieri, 30, was the last man in Delaware to feel the traditional cat-o’-nine-tails lash his back. On June 16, 1952, the prison warden, whose job included administering floggings, slapped 20 lashes on Barbieri for conviction of breaking and entering.”
      Then, on July 6, 1972, under the headline WHIPPING POST ABOLISHED IN FIRST STATE, this article appeared in numerous papers:
     “The cat-o’-nine-tails has lashed a criminal’s back for the last time in Delaware.
     “The whipping post, used since pre-Revolutionary days as punishment for a variety of crimes in the state, is no more. Delaware, ‘The First State,’ has become the last state to do away with the whip.
     “Gov. Russell W. Peterson today signed the Revised Criminal Code Bill, which abolishes corporal punishment. It passed during the waning hours of the 126th General Assembly last Friday.
     “Local history claims the post was nicknamed “Red Hannah” by blacks in Sussex County. And when a man’s handcuffed arms encircled the post, it was said he was ‘hugging ol’ Red Hannah.’”
      Red Hannah did not die easily. There was considerable talk by candidates for office as well as incumbents that Delaware should retain the whip to enforce law and order. State Senator Thomas E. Hickman Jr. proposed an amendment to permit it for any felony, which fell just two votes short of adoption.
Even today, when journalists find themselves short of news, they occasionally resurrect the story of the whipping post and those who continue to extol its virtues. The following report appeared in the Syracuse Herald Journal in 1991 under the heading “Flogging still has appeal to crime-weary in Delaware.”
     “A museum exhibit designed to show the cruelty of Delaware’s whipping post found instead that the punishment known as ‘Hugging Red Hannah’ still has a certain appeal.
     “‘I think it’s an indication of frustration with the ineffectiveness of our criminal justice system,’ Kathy Bratton, executive director of the New Castle Historical Society said of museum-goers’ reaction. ‘They see crime rates rising and they’re ready to try anything.’
     “In the book Red Hannah, author Robert Caldwell estimated that some 1,600 men were flogged in Delaware from about 1900 to 1940. The punishment was last used on a woman in the 1870s.
     “The exhibit at the Old Library Museum includes a 15-foot replica of Red Hannah––two feet shorter than the original––as well as the white whipping post used in Dover, its sides worn down from years of ‘hugging.’
     “There are pictures of public floggings; of men stripped to the waist, tied to posts; and men in a double pillory atop one whipping post. Display cases hold cat-o’-nine-tails.
     “Bratton designed the exhibit to coincide with the 200th anniversary of the Bill of Rights, particularly the Eighth Amendment, which prohibits cruel and unusual punishment.
     “Harry Themal, a columnist at The News Journal in Wilmington, witnessed Delaware’s last whipping in 1952. ‘Not only should floggings be resurrected, but violent criminals should be whipped in public,’ he said.”

You can reach Hal Roth at nanbk@dmv.com.