Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-06-27

their own shame and against the in.
terest OF the public. But are they not
in the minimum? And must the mar.
riage relation be formed under these
newly-conceived laws based upon the
brutah.4es Of many centuries since
and be allowed to take the place OF
the marriage relation formed along
the true lines? Must the marriage re-
lation be based and enforced by sta.
tute according to the teachings of the
farmer in selecting his male animals
to be mated with certain female ami.
mails only?
1t is somewhat difficult to define
with precision what is cruel and un.
usual punishment in the constitutional
sense. Usually the length of impris.
onment following a conviction is with
in the discretion OF the legislative
body, and we have an extreme case in
O'Neil VS.. Vermont, 14r U. s., 1923, in
which the judgment of the lower court
was affirmed and the statute upheld.
Eut quite a per cent of the bar of the
country are of the opinion that the
dissenting opinion by Justice Field
%(concurred in by Justices Brewer and
Harlan) was the stronger.
No doubt delegates to the conven'
tions, in providing against cruel pun
ishment, had largely in mind what
Blackstone had then recently written
in volume 4, page 376, such as being
drawn OF dragged to the place of exc
%cution, emboweling alive, cutting of
the hands, or ears, branding on the
face o hand, Sitting the n0strils, plac'
ing the prisoner in the pillory, the
ducking, the rack, and the torture, and
Os in Spanish countries, crucifying
In a very few states Of the Union the
whipping post has been retained as a
constitutional mode of punishment
But it will be found that the courts in
those states have construed the sta
tute thus imposing such punishment
in the light Of their history, and what
had been done and was being done at
the time of the adoption of their con-
stitution. Nm one can doubt but that
under our present civilization If cas-
tration were to be adopted as a mode
of punishment for any crime, all minds
would so revolt that all courts with
out hesitation would declare it to be a
cruel and unusual punishment. AS
we understand it, castration was new
er inflicted after the revolution OF
1858. So that if, IS some now con
tend, it is now competent for a legis'
lature to impose such punishment as
existed by the common law, the valid
ity of the statute providing for castra
ton could not be upheld, because thai
punishment was one imposed back OF
the time of the common law as, gen
orally speaking, it comes down to us
In O'Neil vs.. Vermont, 144 U. S., 1923
and Weems VS.. United States, 217 U,
S., $40, and in re Keml"r, 1vv u. S.
436, all phases of the question are sc
presented as to lea 6 nothing further
to be said.
While it is true that there are diff
ferences between the two operations
of c%astration and vasectOmy, and
while it is true that the effect upon
the man would be different in several
respects, yet the fact remains that the
purpose and the same shame and hu
initiation and degradation and menta'
torture are the same in n case as ir
the other. And our conclusion is tina
the infliction Of this penalty is in VIC
lation of the constitution which pro
vides that cruel: and unusual punish
ment shall not be inflicted.
This statute not only allows blu,
commands the operation of vasectOmy
to be performed upon all twice con
victed of a felony. A felony in lowe
is not only murder, arson, rape, coun
terfeiting, and other serious crimes
known as felonies at the common law
but they have been much extended
under the Iowa statute, and some
things are now felonies which until re
Gently were misdemeanors with trials
before a justice of the peace, or else
no crime at all; wife abandonment
cutting electric light wires, breaking
an electric globe, ob%structing highway
christening a strap in a harness, and
other things. So that if a person com
mits two or more of these, he is to be
subjected to the operation if this sta
tute is enforced.
And it is of importance in argumen,
whether the prison physician does this
on his own motion or under an order
of the state board of parole. The
hearing is by an administrative board
or officer. There is no actual hear
ing. There is no evidence. The pro
ceedings are private. The public
does not know what is being done
until 1t is done. Witnesses are not
produced, or if produced they are not
cross-examined. What records are ex
amined is not known. The prisoner
is not advised. of the proceedings until
ordered to submit to the operation
And yet in many cases there will be
involved a serious controverted ques'
ton of fact. The records of two con
victions may show the same name OF
the party or parties convicted; but
there are many men of the same name
but which is no proof that the person