Baltimore Evening Sun/July 23, 1910
A war upon short weights and dishonest measures is in progress in New York City, and Mayor Gaynor lets it be known that he will neither shave nor drink champagne until every pound of beefsteak sold in his dominions contains 16 ounces of honest meat, with no allowances whatever for skewers, wrapping paper and cordage It is easy, of course, to say such things, but it is often very difficult to transmute the saying into appropriate objective phenomena. Is anything accomplished by snaring and lining the felonious butchers and green grocers, as the law providers? Not much. The city inspectors, however assiduous, can’t hope to visit every offender every day, and on the off days each villain goes back, quite freshly to the peck of six or seven quarts and the pound of 14 ounces. Jailing him is scarcely more efficacious, for while he languishes in his dungeon his sympathetic clerks reduce the pound further, to 13 or 12 or even 11 ounces, that he may get due compensation for his tortures.
In view of this difficulty, it has been suggested that the custom of punishing culprits by fines and imprisonment be abandoned, and that some more effective deterrent be devised. One penologist suggests the placarding of short-weight stores “Let the city be empowered,” he says, “to affix outside the store of any dealer convicted of using short weights and measures a small but clearly printed and framed statement of his conviction and the specific offense. This should remain in evidence two weeks. Before those two weeks run round, may the penologist in question, every one of the offending dealer’s customers will be well warned of his dishonesty, and he will suffer a drop in trade that will remain an effective object lesson to him for many moons. Two such placardings, if near together, will completely ruin him.
Fines and Imprisonment
There is a lot of good sense in this suggestion, and it reveals a clear understanding of the failure of our present system of punishments. We have come, by slow stages, to rely almost entirely upon fines and imprisonment for the punishment of offenses against society and even imprisonment is gradually giving way, under the suspended sentence and parole scheme, to the mere threat of it. Besides fines and imprisonments, but two punishments are now recognized by American law, the one being that of death, which is inflicted very rarely and in some states not at all, and the other being that of mutilation, which is inflicted in but a few states and then only for one unspeakable, but not very common crime. As a matter of record, fully 95 percent of all persons brought to justice in this country, for felonies and misdemeanors, are punished by fines. These fines range in amount from the $1 in which the roistering wedding guest is mulcted, to the $10,000 paid by the wealthy smuggler, and the $32,000,000 levied upon (bt not collected from) the Standard Oil Company.
In earlier and more barbarous ages punishments were infinitely more diverse. Among the ancient Jews, for example, the doctrine of an eye for an eye gave wide scope to the ingenuity and imagination of the judges. No doubt the members of the Judaean judiciary, being no more than human, took considerable pride in devising original and startling punishments. The judicial office, at that time, taxed the mind; it was not merely clerical and mechanical, as it is today. A judge had to be something of an anatomist and something of a poet. We know, as a matter of fact, that many strange punishments were invented in Asia Minor during the time of the shepherd kings. Murderers were executed in 20 or 30 different ways and lesser criminals were treated with equal resourcefulness. We may well imagine that the judge who devised the scheme of fastening highwaymen to anthills was honored as a man of daring mind. And so, too, no doubt, was that judge who first practiced extracting the fingernails of pickpockets.
In the Happy Middle Ages
In the Middle Ages the invention of new and striking punishments engaged men of the highest calibre. Fines were reserved for the rich, who alone could pay them. The common people liquidated their debts to the law in the pillory, the stocks and the ducking stool, or on the rack or wheel. They were whipped, branded, or sold into bondage. Their ears, fingers, noses, toes and even their whole limbs were lopped off. Vinegar was injected into their nostrils, their heads were shaved, iron collars were fastened about their necks, symbolic designs were burned upon their backs and fronts, they were hung up by their thumbs, the soles of their feet were scourged with brambles. It was a dull judge who made no contribution in those gay days to the pharmacopeia of torture.
The fact is evident, of course, that many of these ancient and mediaeval punishments were excessively cruel, but the fact should not blind us to the merits and advantages inherent in their great variety. Until a hundred or two years ago a judge called upon to sentence a convicted offender enjoyed a wide and comfortable leeway. He could, in some sense, make the punishment fit the crime. He could order lashes for the wife-beater, send the petty thief to the pillory, brand the blasphemer upon the cheek, flabbergast the wealthy malefactor with a ruinous fine, exile the burglar beyond the seas, order the deserter to the hulks, throw the swindler into a dungeon and doom the traitor to the block or rope. But the judge of today is tied hand and foot He may fine or he may imprison. No other arrow is in his quiver.
Punishing the Joy Rider
It requires no long argument to show that fines and imprisonment fail to meet the needs of many a judicial emergency. The case of the New York butchers and green grocers has been mentioned Fines merely annoy them and make them defiant; placarding would actually punish them and so make them turn from their sinning. The case of the wealthy automobilist, taken by the gendarmes in the act of joy-riding, is more familiar. Public sentiment seems to be against sending him to the penitentiary—and fines merely excite his lightsome guffaw. But six strokes of a resilient birch, applied to his pantaloons in open court, or half an hour in the stocks in front of his club, or a bit of ducking in the nearest ocean, or the deft imprinting, with caustics or indelible ink, and upon his retreating brow, pale cheek or bald head of the letters J and R—any one of these punishments would cure him instanter.
(Source: University of North Texas Microfilm Collection)
The works of H.L. Mencken and other American journalists are now available at The Archive of American Journalism.