1911 Encyclopædia Britannica/Corporal Punishment

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22551921911 Encyclopædia Britannica, Volume 7 — Corporal PunishmentAlexander Wood Renton

CORPORAL PUNISHMENT, chastisement inflicted by one person on the body (corpus) of another. By the common law of England, Scotland and Ireland, the infliction of corporal punishment is illegal unless it is done in self-defence or in defence of others, or is done either by some person having punitive authority over the person chastised or under the authority of a competent court of justice. Corporal punishment in defence of self or others needs no comment, except that, like all other acts done in defence, its justification depends on whether or not it was reasonably necessary for the protection of the person attacked. Among persons invested with punitive authority, mention must first be made of parents and guardians, and of teachers, who have, by implied delegation from the parents, and as incidental to the relation of master and pupil, powers of reasonable corporal punishment. Such powers are not limited to offences committed by the pupil upon the premises of the school, but extend to acts done on the way to and from school and during what may be properly regarded as school hours (Cleary v. Booth, 1893, 1 Q.B. 465). The rights of parents, guardians and teachers, in regard to the chastisement of children, were expressly recognized in English law by the Prevention of Cruelty to Children Act 1904 (§ 28). Poor law authorities and managers of reformatories are in the same position in this respect as teachers. The punitive authority of elementary school teachers is subject to the regulations of the education authority: that of poor law authorities to the regulation of the Home Office and the Local Government Board. A master has a right to inflict moderate chastisement upon his apprentice for neglect or other misbehaviour, provided that he does so himself, and that the apprentice is under age (Archbold, Cr. Pl., 23rd ed., 795). Where a legal right of chastisement is exercised immoderately, the person so exercising it incurs both civil and criminal liability.

In some of the older English legal authorities (e.g. Bacon, Abridg. tit. “Baron and Feme,” B), it was stated that a husband might inflict moderate corporal punishment on his wife in order to keep her “within the bounds of duty.” But these authorities were definitely discredited in 1891 in the case of R. v. Jackson (1 Q.B. 671). By the unmodified Mahommedan law, a husband may administer moderate corporal punishment to his wife; but it is doubtful whether this right could be legally exercised in British India (Wilson, Digest of Anglo-Mahommedan Law, 2nd ed., pp. 153, 154). In Hawkins’s Pleas of the Crown (Bk. 1, c. 63, § 29) it is laid down that “churchwardens, and perhaps private persons, may whip boys playing in church” during divine service. But while the right to remove such offenders is undoubted, the right of castigation could not now safely be exercised. At common law the master of a ship is entitled to inflict reasonable chastisement on a seaman for gross breach of duty. But such offences are now specially provided for by the Merchant Shipping Act 1894 (§§ 220-238); and where the provisions of that statute are available, corporal punishment would probably be illegal.

As to corporal punishment in the army and navy, see articles Military Law; Navy. In civil prisons, whether they are convict prisons or local prisons, corporal punishment may not be inflicted except under sentence of a competent court, or except in the case of prisoners under sentence of penal servitude, or convicted of felony, or sentenced to hard labour, who have been guilty of mutiny or incitement to mutiny, or of gross personal violence to an officer or servant of the prison (Act of 1898, § 5). Flogging for these offences in prison may not be inflicted except by order of the board of visitors or visiting committee of the prison, made at a meeting specially constituted, and confirmed by a secretary of state (Prison Act of 1898, § 5; Convict Prison Rules 1899; Stat. R. and O. 1899, No. 321, rr. 77-79; Local Prison Rules 1899; Stat. R. and O. 1899, No. 322, rr. 84, 85). The mode of inflicting the punishment is prescribed by the Convict Prison Rules (rr. 82-85) and the Local Prison Rules (rr. 88-91), which limit the number of strokes and prescribe the instrument to be used for inflicting them, the cat or birch for prisoners over 18, and the birch for prisoners under 18.

Corporal punishment for breaches of prison discipline in Scottish prisons is not authorized by any statute nor under the Scottish Prison Rules (see Stat. R. and O. Revised, ed. 1904, vol. X. tit. “Prison, Scotland,” p. 60). In Irish convict prisons corporal punishment may be inflicted by order of justices specially appointed by the lord-lieutenant under § 3 of the Penal Servitude Act 1864, but the Irish Prison Rules of 1902 (Stat. R. and O. 1902, No. 590) contain no reference to this power.

At common law, courts of justice had jurisdiction to impose a sentence of whipping on persons convicted on indictment for petty larceny or misdemeanours of the meaner kind (see 1 Bishop, Amer. Cr. Law, 8th ed., § 942). But they do not now impose such sentence except under statutory authority. The whipping of women was absolutely prohibited in 1820 by the Whipping of Female Offenders Abolition Act of that year. But there are numerous statutes authorizing the imposition of a sentence of whipping on male offenders. The following cases may be noted. 1. Adults: (a) who are incorrigible rogues (Vagrancy Act 1824, § 10); (b) who discharge fire-arms, &c., with intent to injure or alarm the sovereign (Treason Act 1842, § 2, and see 8 St. Tr. N.S. 1, and O’Connor’s Case, 1872, ib. p. 3 n.); (c) who are guilty of robbery with violence (Larceny Act 1861, § 43), or offences against § 21 of the Offences against the Person Act of 1861; there has been much controversy as to whether the Garrotters Act of 1861, which authorized the ordering of more than one whipping in the case of an offender over 16 years of age, was the effective cause of the diminution of the offences against which it was directed, but the best judicial opinion is in the affirmative. 2. Males under sixteen: (a) in any of the cases above noted; (b) for many statutory offences, e.g. larceny (Larceny Act 1861), malicious damage (Malicious Damage Act 1861, § 75; Criminal Law Amendment Act 1885, § 4); (c) by courts of summary jurisdiction (Summary Jurisdiction Act 1879, §§ 10, 11, and 1899; First Offenders Act 1887); if a boy is over 7 and under 12, not more than 6 strokes, if he is over 12, but under 14, not more than 12 strokes may be inflicted; the birch-rod is to be used, and the punishment is to be given by a police constable in the presence of a superior officer, and of the parent or guardian if he desire it.

In Scotland the whipping of male offenders under 14 is regulated by the Prisons (Scotland) Act 1860, § 74, the Whipping Act 1862, and § 514 of the Burgh Police (Scotland) Act 1892; and offenders over 16 may not be whipped for offences against person or property (Whipping Act 1862, § 2).

In Ireland the law is in substance the same as in England; for special statutes see official Index to Statutes (ed. 1905), p. 985, art. Punishment, 6.

The flogging of women is prohibited throughout British India (Code of Criminal Procedure, Act v. of 1898, § 393) and the British colonies, where the infliction of corporal punishment by judicial order is in the main regulated on the lines of modern English legislation. In some British colonies the list of offences punishable by whipping is larger than in England (see Queensland Criminal Code 1899, arts. 212, 213, 216).

In the United States whipping is not a legal punishment under the Federal Law (Revised Stats. U.S. § 5327). But in some of the states of the Union whipping is inflicted under statute, and is not held cruel or unusual within the Federal Constitution (1 Bishop, Amer. Crim. Law, 8th ed., § 947). In Delaware wife-beating and certain offences against property by males are punishable with flogging; and in Maryland the same punishment is applicable for wife-beating. Flogging is in force as a disciplinary measure in some penal institutions.

It has been suggested by Laurent (Principes de droit civil français (1870), vol. iv. § 275) that the express definition in the French Code Civil (arts. 371 et seq.) of parental rights over children excludes the power of corporal punishment. But this view is not generally accepted. The parental right of moderate chastisement is expressly reserved in the Civil Code of Spain (art. 155, 2). Flogging is not recognized as a legal punishment by the French Code Pénal, nor by the Penal Codes of Germany, Italy, Spain or Portugal. (See also Whipping or Flogging.) (A. W. R.)