CHAPTER VII.

TH

ILLINOIS CRIMINAL CODE.

HE legislature of Illinois, at its session of 1824-25, instructed the justices of the supreme court to prepare a Revision of the statutes of the state, to be presented at the next session. Such a work was imperatively demanded. Both Governors Bond and Coles had in their messages urged this matter at several sessions of the legislature, but for some reason, the work had been neglected, and the crude attempts to amend existing statutes had made the matter worse. This was especially the case with reference to the criminal code.

The first legislature of the Northwest Territory had adopted a code of laws, incomplete and poorly arranged to start with, and not much improved by subsequent legislatures. The Indiana Territory adopted this code as it stood in 1800, and with various additions and amendments bequeathed it to the Territory of Illinois in 1809. The legislature of this territory made several attempts at revision without any substantial improvement, and when the state, at its organization, adopted this patched-up code, it was, as Governor Ford expresses it, so crude and contradictory that no one could tell what it did mean, or did not mean. The penalties under the criminal code were retained with all their cruelty and barbarity. There was no state prison, and the county jails were log pens, more fit for wild beasts than human beings, and so from necessity the penalties for violation of the law were such as could be inflicted without delay, such as whipping, branding, the pillory, fines and death. In some cases, where the fine could not be collected, the culprit might be sold till he had worked out his fine. Death was the penalty for murder, rape and second offense of horse stealing. Whipping was the most common penalty, and in the number of lashes inflicted there was much more regard to popular feeling than to

justice. For burglary, or robbery, the penalty was thirty-nine stripes on the bare back; horse stealing, from fifty to one hundred lashes for first offense; hog stealing, from twenty-five to thirtynine lashes; for defacing marks or brands on animals at large, forty lashes well laid on, and for second offense the culprit was to have letter T branded in the left hand with a red-hot iron; and for bigamy from one hundred to three hundred stripes.

The judges realized the importance and necessity of a revision of the laws, and at once entered upon the work, assigning most of it to Justices Lockwood and Smith. Judge Smith was absent from the state for several months, which threw an undue share of the work upon Judge Lockwood. The revision of the criminal code was entirely his work. It can hardly be called a revision, as the old statutes of the state were largely ignored, and the work to a considerable extent was necessarily original as to forms of expression, arrangement, and relation of penalties to crimes.

The following quotations indicate something of the difficulties of this work, and its value to the state. Mr. Eugene L. Gross, in the preface to his "Digest of the Criminal Laws of Illinois,” published in 1868, says: "Previous to 1827 the statutes were few and imperfect. They had little of the harmony, and none of the regularity, of a rounded and completed system. They were passed at different times and for different purposes, and were framed to suit the needs of pioneer life. But at the session of that year, the legislature revised the entire body of the statutes; the criminal code was prepared with especial care, and was expressed in language at once full, clear and exact. It was the work of Judge Lockwood, and considering all the circumstances in which he was then placed, there being no libraries in the state, and no law books to which he had access, except a volume of the laws of New York passed in 1802, and a volume of the laws of Georgia, this work of Judge Lockwood is an enduring witness to his clear intellect, and to his thorough culture as a lawyer. It is not an attempt to create a substitute for the common law, but is rather an embodiment of it, with merely such modifications as were required to suit it to the wants of this people, and adapt it to society here in its new and varying forms. As such it has long been a theme of admiration in the state and elsewhere."

The following statement made by Justice Craig at the laying of the corner-stone of the court house of Knox county on June 24, 1885, indicates how well this work of Judge Lockwood has stood the test of time: "Our criminal code, with but few amendments, has been in existence since the revision of our laws in 1825. It was drafted, as I have been informed, by Judge Lockwood, one of the ablest judges our state ever produced. We had a constitutional convention in 1847, and again in 1870, to form an organic law for the state. Each of those bodies prepared a constitution which was adopted by the people. Again, since 1870, the legislature has revised our statutes, but while the statute on various subjects was changed, the criminal code was found to need but few amendments, and hence was left substantially as originally prepared in 1825."

The article in this code, with reference to "Accessories to Crime," is here worthy of notice, as under it the Chicago anarchists have recently been tried and convicted of murder. It reads as follows: "An accessory, is he, or she, who stands by and aids, abets or assists; or who, not being present aiding, abetting or assisting, HATH ADVISED AND ENCOURAGED the perpetration of the crime. He, or she, who thus aids, abets or assists, advises or encourages, shall be deemed and considered as principal, and punished accordingly."

CHAPTER VIII.

DECISIONS OF THE SUPREME COURT.

THE very important place held by Judge Lockwood on the

supreme bench, and the large amount of work accomplished by him, can be appreciated only by those who are familiar with the decisions of that court. A brief review of the first volume of Illinois Reports is here given, as indicating something of his work. This is a small octavo volume of 306 pages, covering the period from 1819 to 1830, Judge Sidney Breese, reporter. For the first five years of this period the decisions of the court are of no value. Six terms of the court were held, but no matter of any importance came up for consideration. Fortyfive cases came before the court by appeal, and the opinions of the court in all these cases cover only fifty-two pages of the Reports.

We have seen how the court was constituted during that period, and the decisions have probably never been quoted as authoritative. The Reports from 1825 to 1830 show a very different order of things. The court realized the responsibility resting upon it. Holding its sessions amid very rude frontier surroundings, it established and maintained stringent rules of practice, and preserved a decorum and dignity creditable alike to the court and state. Its decisions covered important questions of law and practice not reversed by subsequent courts. How large a part of this work devolved upon Judge Lockwood, the following figures indicate: In the two terms of the court held in 1825, twenty-three cases were decided, and in thirteen of them Judge Lockwood rendered the opinion. In 1826 twentyseven cases were considered, and the opinion of the court in thirteen of them was rendered by Judge Lockwood. In two succeeding terms, in eighteen cases out of twenty-nine, the opinion of the court was written out by Judge Lockwood, and

to this it may be added that in almost every important case the labor of writing out the opinion of the court was assigned to him. The following extracts from some of these opinions are interesting historically, and show something of Judge Lockwood's style of thought and expression.

The first case of any importance, that came up for adjudication, had in it a political bearing, and was the occasion of much party feeling, and may be regarded as the commencement of a conflict between the legislature and the supreme court, which lasted till the Constitution of 1848 radically changed our whole judiciary system. It is very difficult to find names to designate the political parties at this time. The old issues incidental to the organization of the National government had largely died out, and the old party names, Federal, Republican and Democratic, had, as to their original use, become obsolete. But the old parties had not died out, and were now reorganizing on new measures, and around new men, and were soon to accept the new names, Democrat and Whig; and by anticipation we may, for convenience, use these names here. In the gubernatorial election of 1822, the Democratic party nominated Chief Justice Joseph Philips for governor, and Adolphus F. Hubbard, lieutenantgovernor. As this party had a large majority in the state, and was confident of success, it seemed hardly worth while for the other party to make any opposition. But better counsel prevailed, and the minority party brought out its best man, Edward Coles, for governor, determined to make the best fight possible. The result of the election was an entire surprise to both parties.

The friends of Mr. Philips were very wrathful over their defeat and claimed they were cheated. Judge Philips himself left the state in disgust, not to return. This wholly unlooked-for election of Governor Coles was a great blessing for the state, but placed him in a very uncomfortable position. Both branches of the legislature were opposed to him by a large majority. Attempts were made to worry him into a resignation. Mobs were stirred up against him with threats of personal violence. Malicious prosecutions were commenced against him in the lower courts, and heavy fines imposed, and finally a bold attempt was made to oust him from the office of governor under the provision