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death penalty for the violation of the revenue laws, i.e., smuggling, or the illicit manufacture of liquors, or even for larceny or embezzlement, would properly be considered as prohibited by this provision as being “ cruel and unusual.” But if such a construction prevailed, it would be difficult to determine the limitations to the legislative discretion.

There has been so little litigation over this provision of our constitutions, that it is not an easy matter to say what is meant by the clause. Judge Cooley says: “Probably any punishment declared by statute for any offense, which was punished in the same way at common law, could not be regarded as cruel and unusual in the constitutional sense. And probably any new statutory offense may be punished to the extent and in the mode permitted by the common law for offenses of a similar nature.”ı Capital punishment can

1 be inflicted, in organized society, only under the warrant of a court of justice, having the requisite jurisdiction, and it must be done by the legal officer, whose duty it is to execute the decrees of the court. The sentence of the court must be followed implicitly. The sheriff is not authorized to change the mode of death, without becoming guilty of the crime of felonious homicide.?


SECTION. 12. Security to limb and body – General statement.

12a. Corporal punishment.
126. Personal chastisement in certain relations.

§ 12. Security to limb and body -- General statement. — This right is as valuable, and as jealously guarded against violation, as the primary right to life. Not only does it involve protection against actual bodily injuries, but it also includes an immunity from the unsuccessful attempts to inflict bodily injuries, a protection against assaults, as well as batteries. This protection against

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1 Cooley Const. Lim. 403, 404. 2 4 Bl. Com. 402-404.

the hostile threats of bodily injury is as essential to one's happiness as immunity from actual battery. But however high an estimate may be placed generally upon this right of personal security of limb and body, there are cases in which the needs of society require a sacrifice of the right; usually, however, where the wrongful acts of the person, whose personal security is invaded, have subjected him to the possibility of forfeiture of any right, as a penalty for wrong-doing.

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§ 12a. Corporal punishment.— The whipping-post constituted at one time a very common instrument of punishment, and in the colonial days of this country it ornamented the public square of almost every town. At present corporal punishment is believed to be employed only in Delaware and Maryland. It was much resorted to in England as a punishment for certain classes of infamous crimes. “The general rule of the common law was that the punishment of all infamous crimes should be disgraceful; as the pillory for every species of crimen falsi, as forgery, perjury and other offenses of the same kind. Whipping was more peculiarly appropriated to petit larceny and to crimes which betray a meanness of disposition, and a deep taint of moral depravity."'

It does seem as if there are crimes so infamous in character, and betoken such a hopeless state of moral iniquity, that they can only be controlled and arrested by the degrading punishment of a public whipping. It is now being very generally suggested as the only appropriate punishment for those cowardly creatures, who lay their hands in violence upon their defenseless wives. But public opin


1"Without such security society loses most of its value. Peace and order and domestic happiness, inexpressibly more precious than mere forms of government, cannot be enjoyed without the sense of perfect security.” Gilchrist, J., in Beach v. Hancock, 27 N. H. 223.

* In Maryland it has been revived as a punishment for wife beating. 8 Taylor, Ch. J., in State o. Kearney, 1 Hawks, 63.

ion is still strongly opposed to its infliction in any case. The punishment is so degrading that its infliction leaves the criminal very little chance for reformation, unless he betakes himself to a land, whither the disgrace will not follow him, or be generally known.

In respect to the constitutional right to impose the penalty of corporal punishment for crime, Judge Cooley says: “We may well doubt the right to establish the whipping post and the pillory in the States in which they were never recognized as instruments of punishment, or in States whose constitutions, revised since public opinion had banished them, have forbidden cruel and unusual punishment. In such States the public sentiment must be regarded as having condemned them as • cruel ;' and any punishment, which if ever employed at all has become altogether obsolete, must certainly be looked upon as "unusual.'

The fact, that this mode of punishment has become obsolete, has made it impossible to secure any large number of adjudications on the constitutionality of a statute, which authorized or directed the infliction of corporal punishment. But so far as the courts have passed upon the question, they have decided in favor of its constitutionality, and held that whipping was not a “ cruel and unusual” punishment. It has also been recognized as a legitimate power in keepers of prisons and wardens of penitentiaries to administer corporal punishment to refractory prisoners. But whatever may be the correct view in



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1 "Among all nations of civilized man, from the earliest ages, the infliction of stripes has been considered more degrading than death itself.” Herber v. State, 7 Texas, 69.

2 Cooley Const. Lim. *330.

3 Commonwealth o. Wyatt, 6 Rand. 694; Foote v. State, 59 Md. 264 (for wife-beating); Garcia 0. Territory, ew Mex. 415. In the last case, the corporal punishment was inflicted for horse stealing.

4 Cornell v. State, 6 Lea, 624. This power is exercised generally throughout the country; it is hard to say, to what extent with the direct sanction of law.

respect to the constitutionality of laws imposing corporal punishment, this mode of punishment has now become very generally obsolete, and no court would presume to employ it upon the authority of the English common law. A statute would be necessary to revive it.'

§ 126. Personal chastisement in certain relations.As a natural right, in consequence of the duty imposed upon the husband, parent, guardian and master, it was conceded by the common law that they could inflict corporal punishment, respectively, upon the wife, child pupil, ward and apprentice. But as the domestic relations, and the relative rights and duties growing out of them will, receive a more detailed treatment in a subsequent chapter, the reader is referred to that chapter.2

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§ 13. Battery in self-defense. — One of the primary restrictions upon individual liberty, growing out of the organization of society and the institution of government, is that which limits or takes away the right to undertake the remedy of one's own wrongs, and provides a remedy in the institution of courts and the appointment of ministerial officers, who hear the complaints of parties, and condemn and punish all infractions of rights. But the natural right of protecting one's own rights can only be taken away justly where the law supplies in its place, and through the ordinary judicial channels, a reasonably effective remedy. In most cases, where the remedy should be preventive, in order that it may be effectual, the law is clearly powerless to afford the necessary protection, and hence it recognizes in private persons the right to resist by the use of force all attacks upon their natural rights. The degree of force,

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11 Bishop Crim. Law. $ 722. Under the national government, both the whipping post and the pillory were abolished by act of Congress in 1839. 5 U. S. Stat. at Large, ch. 36, § 5. * See post, $$ 160, 165, 172.


which one is justified in using in defense of one's rights, is determined by the necessities of the case. He is authorized to use that amount of force which is necessary to repel the assailant.1 And in defending his rights, as general rule, he may use whatever force is necessary for their protection, although it extends to the taking of life. But before using force in repelling an assault upon one's person, certainly where the necessary force would involve the taking of life, the law requires the person, who is assailed, to retreat before his assailant, and thus avoid a serious altercation as long as possible. When escape is im

. possible, then alone is homicide justifiable. Says Blackstone: “ For which reason the law requires that the person, who kills another in his own defense, should have retreated as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon his assailant; and that not fictitiously, or in order to watch his opportunity, but from a real tenderness of shedding his brother's blood.” ? In the excitement which usually attends such occurrences, it would be requiring too much of the party assailed to adjust to a nicety the exact amount of force which would be sufficient to furnish him and his rights with the necessary protection, and hence he is required to exercise that degree of care which may be expected from a reasonably prudent man under similar circumstances.3

Blackstone also justifies, in cases of extremne necessity, the taking of the life of another, for the preservation of one's own life, where there is no direct attack upon the

i Bartlett v. Churchhill, 24 Vt. 218; Elliott v. Brown, 2 Wend. 497; Murray v. Commonwealth, 79 Pa. St. 311; Lewis v. State, 51 Ala. 1; McPherson v. State, 29 Ark. 225; Holloway v. Commonwealth, 11 Bush, 344; Erwin v. State, 29 Ohio St. 186; Roach v. People, 77 Ill. 25; State o. Kennedy, 20 Iowa, 569; State v. Shippen, 10 Minn. 223.

? 4 Bl. Com. 217. See People v. Sullivan, 7 N. Y. 396; State v. Dixon, 75 N. C. 275; Haynes v. State, 17 Ga. 465; Tweedy o. State, 5 Iowa, 433. 8 Shorter v. People, 2 N. Y. 193; Patterson v. People, 46 Barb. 625.


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