The same number of stripes is prescribed for the burglar whose attempt at theft has not succeeded; and he is also required to find sureties for good behavior or go to jail for a period not exceeding three years. If successful, in addition to the foregoing penalties, he shall be fined in treble the value of the property stolen, one-third to the territory and two-thirds to the injured party. And if he commit or attempt to commit violence, or if he be caught with arms in his hands, with the plain intent to do injury, he may be imprisoned in any jail in the county for a term of forty years. But even this is not sufficient. His family must be reduced to beggary and a bribe offered for conviction; since all his property, real and personal, is forfeited to the territory, the injured party to be recompensed therefrom. Moreover this last penalty is prescribed in the case of arson; and the offender, in addition, shall be whipped, put in the pillory, and confined in jail for a period of not more than three years. The governor and judges were not quite so thoroughly imbued with the spirit of the Levitical law, as were the framers of the first codes of New Haven and Connecticut.' Disobedi as in the law of 1795 for the punishment of larceny under a dollar and a half. It is provided that any person found guilty of such an offence before any two justices of the county, shall "be immediately and publicly whipped, upon his or her bare back, not exceeding fifteen lashes; or be fined in any sum, at the discretion of the said justices, not exceeding three dollars; and, if able, to make restitution, besides, to the party wronged: paying also the charges of the prosecution and whipping: or, otherwise, shall be sent to the work-house, to be kept at hard labor: and for want of such work-house. to be committed to prison, for such charges, for a term not exceeding twelve days." Chase, Statutes, I, 147. See also Dillon, Hist. of Indiana, 375. "If any child, or children, above sixteen years old, and of competent understanding, shall curse, or smite, his, her, or their naturall father, or mother, each such child shall be put to death, Exod. 21. 17. Levit. 20. 9. Exod. 21. 15, unlesse it be proved, that the parents have been very unchristainly negligent in the education of such child, or children, or so provoked them by extream and cruell correction, or usage, that they have been urged or forced thereunto, to preserve themselves from death or maiming": New Haven Code, 1655: Trumbull, Blue Laws, 201. A like provision in ence to parents was not made a capital crime. But the following provision is certainly remarkable, not to say patriarchal, in character. It was enacted that, "if any children or servants shall contrary to the obedience due to their parents or masters, resist or refuse to obey their lawful commands, upon complaint thereof to a justice of the peace, it shall be lawful for such justice to send him or them so offending, to the gaol or house of correction, there to remain until he or they shall humble themselves to the said parents, or masters satisfaction. And if any child or servant shall contrary to his bounden duty presume to assault or strike his parent or master, upon complaint and conviction thereof, before two or more justices of the peace, the offender shall be whipped not exceeding ten stripes."1 The penal laws of the Northwest Territory remained in force in Indiana after the erection of that territory in 1800; and new measures were enacted in the same spirit.2 By the early legislation of Illinois, likewise, branding with a hot iron was authorized; and stripes upon the naked body, varying in number from ten to five hundred, according to the nature of the offence, were prescribed.3 Similar laws existed in the territory of Michigan. Persons almost exactly the same words is contained in the "Capital Laws" of Connecticut, 1642: Trumbull, Blue Laws, 69. And it was incorporated in the Duke of York's Laws, 15. 1 The harsh criminal code put in force by the governor and judges in 1788, was re-enacted by the assembly of 1799: Chase, Statutes, I, 212; and whipping, the pillory, and ear-cropping were retained in the laws of Ohio until 1815: Chase, Statutes, I, 614 ff. (1809), 856 ff. (1815). See an interesting account of the early penal legislation, by Harley Barnes, The Whipping Post in Ohio: Mag. of West. Hist., II, 192-6; and H. B. Curtis' description of the flogging of John Courson for stealing flour, at Newark, Licking County, 1812: Pioneer Days in Central Ohio, in Arch. and Hist. Quart., I, 250–1. Cf. Howe, The Laws and Courts of Northwest and Indiana Territories, 7. 2 Thus bigamy was made a capital crime: Howe, The Laws and Courts, 15. Cf. Dillon, Hist. of Indiana, 421. 'Davidson and Stuvé, Hist. of Ill., 286. Arson and horse-stealing, on econd conviction, were punished with death: Ib., 287. practising witchcraft were punished by fine not exceeding fifty dollars, or by imprisonment for not more than three months. On the order of a single justice of the peace, petty offenders were publicly whipped, and their services might be sold at auction to the highest bidder for a period of three months or less. "The whipping post disgraced the Detroit market house until 1831, when this relic of barbarism was forever removed."3 (f).-Sabbath Laws and the Debtor's Prison. The practice of imprisonment for debt was perpetuated in all its harshness and the revolting scenes of the Marshalsea or the Fleet were re-enacted on western soil. By an act of the governor and judges of the Northwest Territory in 1795, the unfortunate debtor, for any sum less than five dollars, is made liable to indefinite imprisonment. On complaint before any justice of the common pleas or quarter sessions, if the defendant do not produce effects sufficient to satisfy the sum in execution, the constable is "required to take such defendant into the jail of the proper county; and the sheriff or keeper of such jail . . . is required to receive the person so taken in execution, and him safely keep, till the sum recovered, with costs, be paid, or satisfaction made by goods or otherwise." Subsequently the impecunious debtor was graciously allowed to substitute servitude for imprisonment. It was provided that no person shall be kept in jail after the second day of the session next following the day of commitment, unless the plaintiff make it appear that the debtor has undisclosed estate. 1 Territorial Laws, I, 113 (1816). Farmer, Hist. of Detroit and Mich., 190. See the act of the governor and judges of Michigan, July 27, 1818: Territorial Laws, II, 138–9. 3 Campbell, Pol. Hist. of Mich., 405. Chase, Statutes, I, 143. For the procedure in case of greater debts, see Ib., 144 f. If no such estate be found, then, if the plaintiff require it, the debtor shall "make satisfaction by personal and reasonable servitude" for a period not exceeding seven years, according to the discretion of the court. This penalty, however, is restricted to unmarried debtors' under forty years of age, "unless it may be the request" of persons above that age; but "if the debtor be married, and under the age of thirty-six, the servitude shall be for five years only." In either case if the creditor do not accept the "satisfaction" the debtor shall be discharged.2 An act of 1799 for the relief of prisoners for debt provides that, where any such person establishes the fact that he has not sufficient estate to support himself while in jail,3 he may be set free; but in that event, the execution creditor is liable for the jail fees and cost of diet, and these are constituted a 1 Bachelors fared ill under the early laws. The measure just cited is not the only one which reminds us of the Roman legislation of the early Empire. Thus by an act for regulating county levies, passed by the governor and judges of Indiana Territory, 1803, it was provided that, a single man above the age of twenty-one years, not having property to the amount of four hundred dollars and neglecting to pay the tax assessed against him, should be committed to the county jail 'where he shall remain until the said tax shall be paid, unless some reputable person, in the opinion of the sheriff, shall be forth-coming therefor.' Perhaps this law was not enacted for revenue only, but also to encourage marrying. At any rate to pay, marry, or run away, were the only alternatives presented to the young man of that day" Howe, Laws and Courts, 13-14. See also Davidson and Stuvé, History of Ill., 287. : 2 Chase, Statutes, I, 203–4. 3 He was required to subscribe the following "iron-clad" oath: "I. . do in the presence of Almighty God, solemnly swear (or affirm as the case may be) that I have not any estate, real or personal, in possession, reversion, or remainder, sufficient to support myself in prison, or to pay prison charges, and that I have not, since the commencement of this suit against me, or at any other time, directly or indirectly sold, leased, or otherwise conveyed or disposed of to, or entrusted any person or persons whatsoever, with all or any part of the estate, real or personal, whereof I have been the lawful possessor," with intent to keep it from the creditor: Chase, Statutes, I, debt for which the person discharged is responsible just as for other obligations.1 Finally it may be noted that the legislators of the Northwest Territory did not neglect the enactment of laws for the punishment of profanity and sabbath-breaking. Their first measure on these subjects is unique, and will recall the moral admonitions incorporated in the capitularies of Charles the Great: "Whereas idle, vain and obscene conversation, profane cursing and swearing, and more especially the irreverently mentioning, calling upon, or invoking the sacred and supreme Being, by any of the divine characters in which he hath graciously condescended to reveal his infinitely beneficent purposes to mankind, are repugnant to every moral sentiment, subversive of every obligation, inconsistent with the ornaments of polished life, and abhorrent to the principles of the most benevolent religion. It is expected therefore, if crimes of this kind should exist, they will not find encouragement, countenance, or approbation in the territory. It is strictly enjoined upon all officers and ministers of justice, upon parents, and 1 Chase, Statutes, I, 259. Similar laws were enacted in Illinois Territory: Davidson and Stuvé, Hist. of Ill., 287. Imprisonment for debt prevailed in Michigan until 1822, when it was conditionally abolished whenever estates were assigned for the benefit of creditors: Territorial Laws, 1, 83 ff., 206 ff., 255 ff.; Farmer, Hist. of Detroit and Mich., 177. By an act of 1819, the English institution of prison "bounds" was there introduced. It is provided, "That every person imprisoned for debt, either on mesne process or execution, shall be permitted and allowed the privilege of bounds, which are or may be laid off and assigned by metes and bounds around or adjoining each county jail, by the judges of the county courts in each of their respective counties: Provided, The same do not extend in any direction from the said jail more than seventeen hundred and sixty yards; but such prisoner shall in no instance, pass over or without such limits." But this indulgence is granted only to a debtor who can give a bond, with two approved sureties, in double the sum for which he stands committed: Mich. Territorial Laws, II, 155. In Michigan the poor were sold by the sheriff to the lowest bidder: Territorial Laws, II, 115 (1817). Cl. Wis. Hist. Coll., II, 95. |