Documentación del manual de funciones de la institución

The death penalty, however, remained in use in Pennsylvania. E.g., MITCHEL P.ROTH,CRIME AND PUNISHMENT:AHISTORY OF THE CRIMINAL JUSTICE SYSTEM 111 (2010).

253_{James, 1825 WL 1899, at *4.} 254_Id.

255_{Id. “These cases,” it was reported, “occurred a few years prior to the year 1790, when the assembly,}

sitting in this city, new-modelled the penal code of the state, and after abolishing many of the common-law punishments, concluded by declaring, that ‘every other felony or misdemeanor whatsoever, not specially provided for by that act, may and shall be punished as heretofore.’” Id. The case report continued:

As the offence of “scolding” is not specially provided for by the act of 1790, the Attorney-General insisted that this was an express legislative sanction of the common-law punishment, which had been recently and publicly inflicted in the place where the assembly was then sitting. Moreover, as this offence is not punishable by fine or imprisonment at common law, ducking is the only penalty that can be inflicted in the absence of positive enactment.

Id. In reply, counsel for James argued that “none of the judges who pronounced those sentences” for scolding, which had been drawn from the records of the quarter sessions, “were lawyers.” Id. “[T]his court,” he insisted, “was not bound to receive as law, their crude and ill-digested opinions on this subject.” Id.; compare WILLIAM H.LOYD,THE EARLY COURTS OF PENNSYLVANIA 89 n.1 (1910) (internal citation omitted):

It is a matter of some doubt as to whether the ducking-stool ever was actually used in Philadelphia. In 1769 a woman was sentenced to be ducked at the end of Market street wharf, but we are not informed whether the sentence was carried into execution. In 1779 Ann Mease was sentenced to the same punishment but the council remitted the ducking January 26, 1780. In 1781 there was another conviction but the sentence was not carried out.

256 _{PETER S.DU PONCEAU,ADISSERTATION ON THE NATURE AND EXTENT OF THE JURISDICTION OF THE}

COURTS OF THE UNITED STATES,BEING A VALEDICTORY ADDRESS DELIVERED TO THE STUDENTS OF THE LAW ACADEMY OF PHILADELPHIA, AT THE CLOSE OF THE ACADEMIC YEAR, ON THE 22ND OF APRIL,1824 (1824) (published in Philadelphia by Abraham Small and dedicated “To the Honourable William Tilghman, LL.D., Chief Justice of the Supreme Court of the Commonwealth of Pennsylvania, and Patron of the Law Academy of Philadelphia”). That dissertation itself distinguished the American prohibition on cruel and unusual punishments from the earlier one contained in the English Bill of Rights. In his dissertation, Peter Du Ponceau wrote of “certain harsh punishments which our modern manners reprove, but which still stain

the page of the common law; as for instance the punishment of petty treason in men by drawing and quartering, and in women by burning.” Id. at 95. He then wrote this about the difference between American and English law:

But the 10th amendment of our Constitution has sufficiently provided that “no cruel and unusual punishment shall be inflicted,” which word “unusual” evidently refers to the United States, and the time when the Constitution was made, and therefore is not to be confounded with the same clause in the English bill of rights, which referring to another period and to another country, may have been differently construed. The peine forte and dure, and burning in the hand in cases of manslaughter are abolished, and milder substitutes provided by our national statutes; corruption of blood, trial by battle, all other modes of trial, but trial by jury in criminal cases are also abolished; in short the common law as modified by our Constitution, by our laws, manners and usages, is as wholesome and as harmless a system, in criminal as well as in civil cases, as any that can be devised.

Id. at 95–96. As Du Ponceau’s Dissertation then continued:

As to offences not capital, cruel and unusual punishments being forbidden by our Constitution, there remains none but fine, imprisonment and, perhaps, whipping and the pillory. I hope I shall hear nothing of the ducking stool and other obsolete remains of the customs of barbarous ages. The pillory and whipping, I know, are out of use in most of the States, imprisonment at hard labour having been substituted in lieu of them. Yet Congress have thought proper to retain the latter punishment in their penal code, and we have seen it inflicted not long since in our city on an offender against the laws of the United States. It is in the power of the national Legislature to alter or amend the law in this respect, as they shall think proper; but until they do so, I see nothing inhuman in the moderate infliction of either of these penalties, nor any reason why we should reject the common law on their account.

It may be said, perhaps, that there is too much left to the discretion of the Judges as to the quantum, and even the nature of the punishment and sometimes also as to deciding what is or what is not an indictable act. As to the quantum of punishment, I know no system of laws in which some discretion at least is not left to the Court according to the greater or lesser magnitude of the offence. It is impossible to avoid this inconvenience by any legislation. The same thing may be said of the authority to choose between two or three mild punishments; there may be cases in which imprisonment would be death to the party, and when a fine may be inflicted upon him with greater effect; others when the reverse may be the case.

Id. at 96–97. The pillory and the whipping post were once usual punishments in colonial and early America. PETER C.HOLLORAN,HISTORICAL DICTIONARY OF NEW ENGLAND 496 (2d ed. 2017) (“Boston last used the pillory in 1803.”); HOWARD O.SPROGLE,THE PHILADELPHIA POLICE,PAST AND PRESENT 56 (1887):

Fraud sent men to the pillory and workhouse. The last remembered exhibition of this kind was that of a storekeeper, who, to build up his failing credit, made too free use with other people’s names. He was exposed in the pillory, where the populace pelted him with eggs, and, to conclude, had his ears clipped by the sheriff, who held up his ghastly trophies to the gaze and shouts of the populace. Whipping was the usual punishment for larceny and for felonious assaults.