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George A. Mercer :
Gentlemen, if it might take that course I should be very much obliged to you.
Augustus O. Bacon :
I think that report ought to require the most careful deliberation by this body before it decides upon what action it will take. It is certainly one of the most radical measures which could be proposed relative to our Federal legislation. Speaking for myself, I am at present most decidedly opposed to the recommendations of the report, and I think I am unalterably so. At any rate, I would not be willing to cast my vote in the affirmative.
The further consideration of the matter was postponed until next morning.
On motion, the Convention adjourned to meet at 8 P. M.
I have a notice to give that will occupy but a moment. It has happened every year that gentlemen, and sometimes those living quite far off from the place where we have to print our reports, desire to have their remarks sent to them to be corrected and revised. This year we have three copies of the proceedings, in type-written copy, of the preceding day. One copy is in the hands of the President, one in the hands of the Secretary, and the other will be found on the table, and if gentlemen feel enough interest in seeing how the stenographer has done his work to come up and correct it before the matter goes into print it will save some time and trouble. I do not think we ought to be requested to send all over the country. the printed slips to be corrected after we have put it in print, because it occasions great delay, and we wish to get the report out a little earlier.
George G. Wright, as Chairman of the General Council, reported the names of several new members.
(See List of New Members.) The President:
I now have pleasure in introducing to the Association Mr. J. K. Edsall, of Illinois, who will read a paper on “ The Granger Cases and the Police Powers.”
Mr. President, the paper which has been read opens a wide field for discussion, presenting a question as to what is the proper domain for legislation. We may question in our own minds some of the things which have been stated in the paper, how far the Dartmouth College case has been limited in its application, and how far the courts are likely to regard that case in the future. I do not, however, rise now to enter upon this discussion. I presume there are gentlemen here who may take it up if time permits, but I should like to be permitted to say that I observe here a gentleman who has known a great deal of the history of legislation which was brought into consideration in these so-called Granger cases. I refer to Mr. Hurd, of Illinois, and some gentlemen here have been pleased to hear suggestions which he has made and of which he is capable with regard to the origin of that legislation, and I think, if time would permit, we should be glad to hear from him on that subject.
. We have got to get through with the reports of the committees before the paper is discussed. Is there any report from the Committee on International Law, which is next in order ?
The Secretary :
Then the next business in order is the report of the Special Committee which was appointed at the last meeting, of which Mr. Earle is the Chairman.
William E. Earle, of the District of Columbia :
I call the attention of the Association to the report of the Committee of the last session, accompanied by a resolution, which is the next business in order. It is a discussion of the report and action on the report made in 1886 by the Committee on Jurisprudence and Law Reform in regard to the use of the whipping-post as a punishment for crime. The resolution which the Committee reported is as follows : “ Resolved, That, in the opinion of the Association, the interests of society would be promoted by the general use of the whipping-post as a mode of punishment for wife-beating and other assaults on the weak and defenseless, such as assaults committed with sand-bags, brass knuckles, or similar weapons.”
Robert D. Benedict :
Motion to adopt was duly seconded.
I hope, sir, that report will not be adopted. The establishment of the whipping-post would be a retrograde step. How many States in the Union have a whipping-post now? But a very few. If you establish the whipping-post I shall be very happy to think that it will be Balston Spa and not Saratoga Springs where it will be set up, and not next door to the splendid Congress Spring Park. I am opposed to it because its use is liable to abuse and is dangerous. I remember reading of the whipping of Dangerfield in the time of James II. He was tried for a crime of some sort which was not punishable by death, but the court sentenced him to be flogged so that it would kill him. And they did flog him until it resulted in death. What limit will there be how' much a man shall be flogged ? What number of lashes will be administered, and with what force? Another objection is that it is in the nature of torture, and the age when that was allowed is passed. There may be something of the kind in a State prison for the sake of discipline, but outside of it, it never should be allowed. It would be only another step backward in civilization. I object to it also on moral grounds, that it tends to degradation, and not to reformation. If you establish the whipping-post I think the American mind by a very large majority would rather be put under the guillotine. For these reasons, Mr. President, I am opposed to it.
Simon Sterne, of New York:
I trust, sir, that this resolution will prevail, and that, to some extent, for the very reason mentioned by the gentleman who has preceded me—that some men prefer death to whipping. Some twenty-two years ago I happened to be in London immediately after the whipping-post was re-established for the crime of garroting, and I met at a club Sir Edward Hill, who then had had some thirty years' experience in the administration of the criminal law of England. I had spoken with great warmth and pretty much after the same
manner as the gentleman who last spoke about the retrogade character of that kind of punishment at the present era of civilization, and Sir Edward Hill set me right with great promptness by stating to me that his long experience in relation to the administration of the criminal law had taught him that long sentences make very little difference in their deterring influence upon criminals as compared with short sentences, for the simple reason that these criminal classes are devoid of imagination. It took me some little time to understand what he meant, and I asked him to explain, and he said: “Why, you take a man thoroughly civilized, with a high-strung nervous organization, of course; if you segregate him from the rest of the community and immure him within prison walls he would infinitely prefer death ; but these criminal classes, with their senses blunted and their degraded condition, don't understand those distinctions; their imagination don't take in the difference between two years and twenty years, and long sentences do not deter them to any extent. Certain classes of crime must be met by terror.” At that time the English people were suffering from garroting to a considerable extent. The Thames Embankment was just then being constructed, and along the line of that Embankment these crimes were being perpetrated. They tried long sentences, but it did not produce the deterring effect. They tried the whipping-post, and it did have the deterring effect. Now, how did it affect the criminal classes? Why, a man is deterred from doing certain acts because he loses caste among his own class. Now, we are all influenced by the fact that among our own surroundings, be they decent or indecent, we lose caste. The whipped man loses caste. He is looked
upon with scorn by his own associates. The consequence was that nothing so affected the imagination of the criminal class, and particularly those who were likely to commit brutal offenses, as the fact that they were to be whipped. So strongly, therefore, has that influence been exercised upon the criminal classes by the whipping of