Lashes and Stocks
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The laws of the world’s nations have roots in the distant past. The Code of Hammurabi in ancient Babylon sets down the punishments for everything from murder to thievery and everything in between. The laws of ancient Egypt were carved in stone to last millenniums.
The Ten Commandments of the Israelites of more than 3,000 years ago remain a basis for the laws of western civilization. This brief list of “thou shalt nots” is at the heart of the American and European legal systems. When the founders of Kentucky began to codify the laws for the commonwealth, they looked to the mother state of Virginia for precedents. In turn, Virginia looked to England, and England looked to common and Roman law, and on down to the first laws created by the ancients.
English law not only benefited from the Romans, it also drew heavily on the traditions of the various Celtic and Germanic traditions of justice. Common law practices remain a part of the judicial system centuries after Teutonic tribes had created them. One of the oldest of the common laws lasted as a part of the American legal system until recent times. Common-law marriage preserved the integrity of the bonds of wedlock without the benefits of a formal and religious ceremony. If a man and woman cohabitated for seven years, then in the sight of the law they had committed themselves to a legal union. In pioneer Kentucky, many young men and women found themselves without the benefit of clergy. “Ministers of the Gospel” remained few on the frontier. Without a proper religious ceremony, and without a justice of the peace to sanction a civil union, some of the first settlers in Kentucky had to make the decision to live as a common law couple, at least until a clergyman or civil authority arrived in their vicinity to provide their services.
All too often on the wild frontiers of America, the law of “an eye for an eye and a tooth for a tooth” prevailed. Offenses would often be settled with a swift shot to the heart or the head, or a knife through a vital organ. Mob justice favored hanging the offender. Lynch laws seemed a quick way to dispatch a criminal without having to wait for trial.
Vengeance became a trademark of frontier justice. Not until sheriffs, magistrates, justices of the peace, judges and attorneys established the legal system on the frontier could an accused criminal have any hope of a “fair trial.” In the early years of Kentucky settlement, “trial by combat” might take the place of a more sedate way in which to settle a dispute or mete out justice to an offender. Old Anglo-Saxon methods of holding court could end with the death of an offender by the hand of the offended. Some frontiersmen may have believed that God guided the hand of one of the combatants. More likely they believed in “might makes right.”
Again taking a cue from their Anglo-Saxon heritage, the “blood feud” might involve not only those who offended or were offended, but entire families dedicated to the eradication of another family. The infamous Hatfield-McCoy feud of the late 19th century is a prime example of a feud that engulfed dozens of people’s lives and killed several innocent people. Kentucky is just one example of the severity of justice run amuck. The body of laws for other states came from the tradition of an “eye for an eye.”
The laws of colonial America seemed more bloodthirsty than judicial. While the death penalty would be dispensed with a regularity that would appall modern Americans, the colonies did not evoke death for a number of crimes that remained the law in the mother county of England. One of the colonies that later became the state of Connecticut used the death penalty liberally. The precedents for these laws came, for the most part, from the Old Testament. The Book of Leviticus laid down an extensive list of “crimes” that demanded the demise of the perpetrator.
The English Puritans who settled the New England colonies of North America adored the Old Testament and its stern rules for living a godly life. If an extensive list of death penalties pleased the prophets and, therefore, God, who were the Puritans to do less? Religious denominations in America during the colonial and early statehood periods agreed that deviation from the law involved sinning against the Almighty and those sins must be expiated by the harshest interpretation of the legal code. Scaffolds aplenty dotted the American landscape for many years. Criminals must know that their action should and would cost them their lives.
For lesser infractions of the law, judges ordered brandings and whippings for the guilty. While branding a malefactor with a hot iron or slitting his nose, cutting off his ear, and other forms of bloodletting became less used, the law replaced the knife with the whip. Whipping criminals may have seemed better than branding or cutting them for less than capital offenses, but in reality the whip could sometimes be crueler than the branding iron or the knife.
Many towns throughout colonial America and later the United States had a whipping post or tree where a convicted petty criminal would be lashed with a leather whip or a cat o’ nine tails. If the man wielding the whip became too zealous in carrying out his duty, the criminal could well die before the last blow of the sentence could be carried out. In Kentucky, the courthouse yard provided the venue for a public whipping. A post erected for the purpose of tying a convicted prisoner to it might have a prominent place on the grounds surrounding the courthouse. More often, a small tree with a pronounced fork among the lower branches served just as well for the public spectacle to come. Large crowds of citizens, women, children and slaves gathered to witness sentences carried out.
In Lexington, Ky. a black locust tree with a convenient fork in it so the convict’s hands could be tied to the branches stood for many years on the courthouse square. During the decades it stood, the black locust witnessed hundreds of criminals being beaten until the blood ran from the stripes left by the whip. Beating a convicted criminal began to fall out of favor after the Civil War. Corporal punishment reminded many people of slavery and the degradation of human beings. One by one, the whipping posts and the whipping trees disappeared. Nevertheless, as late as the 1870s some citizens of Fayette County petitioned the legislature to re-establish the whipping post.
A bill calling for public whippings to be used for the punishment of petty crimes went to both houses of the Kentucky General Assembly for consideration. In the preamble of the Fayette county resolution for the revival of the whipping post, the petitioners gave following reasons to reinstitute corporal punishment. The state penitentiary and the county jails held far too many prisoners guilty of “petty larceny and minor offenses.”
The taxpayers bore too large a burden from the feeding and care of the prisoners. “In many instances” the jails represented “spectacles revolting to humanity.” One supporter of the bill stated, “I think the bill under consideration is in the interest of humanity, morality and religion, and is not a step backward.” He went on to say, “I find from the Auditor’s report for 1877 that the jailer’s fees for feeding and keeping the felons in Kentucky amounted to the enormous sum of $120,000.”
The proponents of corporal punishment figured that it cost the taxpayers of Kentucky at least 60 cents a day to take care of these less than dangerous criminals. To keep these people at “the expense of the good citizens” could be nothing but wrong. If Kentucky wants crime reduced, then justice should come from “the rope at one end and the lash at the other.”
According to the proponents of corporal punishment, the very thought of “dieting petty thieves” to the sum of 60 cents a day to “the benefit and support of the bad” should not be brooked by the taxpayers of the commonwealth. Examples of the enormous cost of housing and feeding prisoners caused many legislators to support the restoration of the whipping post. A legislator from Simpson County related how a petty thief stole $7 and received a sentence of 12 months in the county jail. The cost of the thief’s confinement cost his county $900. The gentleman from Simpson then enthusiastically declared his support of the bill to bring back corporal punishment. Racial prejudice also played a role in wanting petty criminals to be whipped rather than jailed.
One legislator said that putting blacks in jail only encouraged them to break the law more instead of less. He stated that blacks received better food than they had at home and therefore encouraged them to steal. Reportedly, the legislators in the lower house of the General Assembly broke into loud applause at the end of the testimony to restore the whipping post. However, when the bill reached the Senate, it met with less support. The bill passed the House by a vote of 63 to 21. The Senate vote ended in a tie – 17 to 17. The lieutenant governor cast the deciding vote against the passage of the bill.
Punishments for crimes are still debated as much today as they ever were. Some people call for more humane treatment of criminals, while others want tougher sentences passed to discourage those with criminal intent from being tempted to break the law. No doubt, the debates will go on.
Bryant’s Political Quote
We don’t seem able to check crime, so why not legalize it and then tax it out of business?
Will Rogers (1879-1935)
Ron Bryant is a noted Kentucky historian, lecturer and author. He may be reached at email@example.com.
Read more about Kentucky's vivid history at Friends of Kentucky History.