History of Delaware County, Pennsylvania, Part 42

Author: Ashmead, Henry Graham, 1838-1920
Publication date: 1884
Publisher: Philadelphia, Pa. : L.H. Everts
Number of Pages: 1150

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159

CRIMES AND PUNISHMENTS.

The penal laws of the early English settlers par- took in a large degree, so far as the punishment pre- scribed for their infraction was concerned, of the fierceness which characterized the criminal code of the mother-country at that period, while many of the legislative enactments were intended to correct, by severe penalties, those matters which are now re- garded as subjects purely of personal concern and in no wise coming under public police regulation. The rigor of the law was then so extended that servants tipling at inns or houses of public entertainment were punished by being put in the stocks for at least an hour ; unruly children and servants, on complaint of their parents or masters, if the offender was six- teen years old, were whipped not exceeding ten stripes, while a servant who was convicted of assaulting his master, dame, or overseer, was to receive corporal punishment, in the discretion of the court, "saving life and member." The denial of God or his attri- butes was punishable with death, as was also the kid- napping of any person within the province. He that bore false witness against his neighbor in a capital case was to be put to death, as was also the child that smote his natural parent. The publisher of false news from the mother-country was subject to fines, and for the third offense was whipped not exceeding forty lashes. No marriage could be solemnized unless both parties swore that they were single and legally qualified to enter into that relationship, while, in case of perjury, the party offending was ordered to "be bored through the tongue with a red-hot iron," besides incurring the penalties for adultery, which inflicted whipping, as well as fine aud imprisonment. Forni- cation between single persons was punishable by enforced marriage, or whipping, in the discretion of the court. Laborers and servants were compelled to work the whole day, and "Sundays are not to be pro- phaned by Travellers, Laborers, or Vicious Persons."

The Duke of York's laws, however, announced full freedom of religious opinion to all Christian sects, as follows :

"No congregation shall be disturbed in their pri- vate meetings in the time of prayer, preaching, or other divine services, nor shall any person be mo- lested, fined, or imprisoned for differing in judgment in matters of religion who profess Christianity."

foregoing penalty, the culprit was directed to be branded on the forehead with the letter " A." For the crime of rape the convict forfeited half his estate to the party aggrieved, was publicly whipped, and under- went one year's imprisonment, while for the second offense he was incarcerated for life. Drunkenness was punished by a fine, " or five days in the house of correction at hard labor, and being fed only with bread and water." A conviction of arson made the criminal liable to pay double damages, undergo in- carceration for one year, and be subjected to such corporal punishment as the court thought proper to impose. Bigamy made the party convicted liable to imprisonment for life, while burglary was punished by imprisonment at hard labor for three months ; the prisoner was compelled to make fourfold satisfaction, and failing to do so, was imprisoned for seven years. The child who should assault his parent was com- mitted to the house of correction at hard labor during the pleasure of the parent. Forgery was punished by three months' detention at hard labor. If the crime was forging the seal of any county, the pris- oner should undergo twelve months' imprisonment and be fined, while, if the offense was forging the seal of this province, he should suffer seven years' impris- onment and be fined at the discretion of the Gov- ernor and Provincial Council. The theft of hogs or other cattle was punished, for the second offense, by a fine threefold the value of the articles taken and im- prisonment for six months, while for a third offense the convict should be whipped with twenty-nine lashes and banished never to return again. Persons convicted of premeditated murder, "according to the law of God, suffer death." This punishment did not work an entire forfeiture of his estate, but one-half of his possessions was "to be disposed of as the Gov- ernor shall see meet." The robbery of orchards, or the theft of any linen, woolen, or other articles left without doors, rendered the party convicted of any of these offenses liable to pay threefold the costs of the articles taken, or to be publicly whipped by the constable not exceeding twenty-one stripes; while the forcible robbery from any person of money or other articles was punishable by restoring fourfold the value of the goods stolen and being whipped not exceeding twenty-one stripes.

After Penn acquired the title to the province of The minor regulation interdicted all persons from taking part in stage plays, revels, masques, or offering of prizes, under a penalty of five shillings or ten days imprisonment, while card-playing, dicing, lottery, and evil sports and games were punishable by a like fine, or five days' detention in the workhouse at hard labor. The drinking of healthis was punishable by a fine of five shillings or five days' imprisonment, while rail- ers and scolders were incarcerated at hard labor for three days, which, at the next General Assembly, was made punishable by gagging, and in that condition to stand one hour in a public place. Subsequently horse- Pennsylvania, and the great body of laws was enacted at the Assembly convened at Chester, Dec. 4, 1682, much of the severity of the criminal code was done away with. Profanity was made punishable by fine or five days' imprisonment ; adultery subjected the party convicted to public whipping and one year's imprison- ment, while for a second offense the term of incarcera- tion was for life. Under the act of 1705 adultery was punished by whipping with twenty-one lashes and im- prisonment for one year, or a fine of fifty pounds; a second conviction increased the imprisonment to seven years, and on the third conviction, in addition to the ' racing, shooting-matches, and such idle sports were

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HISTORY OF DELAWARE COUNTY, PENNSYLVANIA.

interdicted, and if the offenders chanced to be ser- vants, negro or Indian slaves, they were whipped with fifteen lashes and imprisoned six days, while for the second offense the whipping was increased to twenty- one lashes and the imprisonment to ten days.

The humane penal laws prepared by Penn and enacted at his suggestion, were summarily repealed by the act of May 31, 1718. William Bradford, who had been attorney-general and a judge of the Su- preme Court of Pennsylvania, and died while dis- charging the office of Attorney-General of the United States, in an essay on the criminal law of this com- monwealth, declares that the privilege which the act just alluded to conferred on Friends-that of testify- ing in court of justice on their solemn affirmations, instead of taking a corporal oath-was the induce- ment for adopting, in 1718, the sanguinary rigor of the English law, in violation of the humane policy which had previously influenced the Legislature of Pennsylvania on the subject of crimes and punish- ments. By the act mentioned high treason, petty treason, counterfeiting the currency, murder, robbery, burglary, rape, sodomy, manslaughter, witchcraft, and conjuration were punishable by death. Receiving stolen goods or concealing robbers, aud murder where benefiting of clergy was craved, was punished by branding on the fleshy part of the left thumb the let- ter T for the first crime, and M for the latter, which branding was ordered to be done in open court by the jailer. By the act of Feb. 21, 1767, knowingly re- ceiving stolen horses subjected the party convicted thereof to public whipping, not exceeding thirty-nine lashes, standing in the pillory one hour, and to be imprisoned at hard labor not exceeding three years, while by the same act counterfeiting gold and silver coins was punished by standing in the pillory one hour, to have both ears cut off and nailed to the pil- lory, to be publicly whipped not exceeding twenty- one lashes, and to forfeit a hundred pounds, which was divided equally between the government and the informer. The severity of the punishment, it seems, did not lessen the number of horses stolen. There- fore, March 10, 1780, the Legislature increased the penalty, providing that in the case of a second con- viction, in addition to the foregoing punishment, the culprit should be branded on the forehead, "in a plain and visible manner, with the letters H T." That hardly over a century ago men were branded as a punishment we know, for at the special court for the trial of negroes, held at Chester, March 3, 1770, be- fore William Parker and Richard Riley, justices, Ne- gro Martin, the slave of Thomas Martin, was con- victed of an attempted rape, and sentenced "to be whipped with thirty-nine lashes, well laid on his Bare Back, at the common whipping-post, between the Hours of one and three this afternoon, and be branded with the letter R on his forehead, and be exported out of this Province by his master within six months, never to return unto the same upon pain of death,

and to be kept in Prison till exportation at his master's charge, and to pay the costs of Prosecution." And on Jan. 4, 1772, in the case of Negro Dick, the slave of mulatto Dinah, otherwise Dinah Jones, tried at a like special court, before John Morton and Wil- liam Parker, Esqs., the defendant was convicted of a similar crime, and sentenced to a like punishment. On Sept. 15, 1786, the act was passed by the General Assembly which swept away many of the harsh fea- tures of our criminal code, substituting therefor in many cases a milder form of punishment.

In the early times public acknowledgment by the party accused of the wrong he had done, in many cases seemed to fill the measure of atonement de- manded by the judges who dispensed justice among the first settlers of our county. Hence we find that at the court held at Chester, the 3d day of first week, Tenth month, 1689, Alleu Robinett, Sr., who was ar- raigued "for writing scandalous and abusive papers against John Bristow, one of ye King's Justices and representatives in Council of ye People of this county, contrary to ye 29 law of this Province," having pleaded guilty, was sentenced that "he shall here in Publick acknowledge in particular his fault and crimes for which he stands Indicted, and pay all county charges," while at the same court Nicholas White and William Thomas, who were indicted for "Speaking words tending to sedition and breach of Peace, and persuad- ing people (contrary to an order of court) not to pay ye Publicke Levies of this County, when thereunto lawfully required," who acknowledged the fact and prayed the mercy of " ye King and government," were acquitted, paying their fees. On the 14th day of the First month, 1693, Thomas Poe and Sarah Butler, con- victed of fornication, were sentenced "to stand at the common whipping-post and for the offence to declare their offence to the People and also to pay a fine of twenty shillings and court charges." And at the same court John Clowes and Eleanor, then his wife, were also convicted of the like offense. They were sentenced to pay a fine of fifty shillings, and " Eleanor shall stand at the common whipping-post for one-quarter of an hour, with a paper upon her breast that I stand here for an example to all others for committing that most wicked and notorious sin of fornication." As late as February court, 1753, Owen Oberlacker, alias John Bradley, convicted "of speaking seditious words," was sentenced to stand in the pillory one hour, with the inscription, "I stand here for speaking seditious words against the best of Kings, wrote in a large hand, to be affixed to his back." Oberlacker was also subjected to the punishment of twenty-one lashes upon his bare back, well laid on.

This whipping of convicts, as is seen by the brief summary of the provincial criminal laws, heretofore given, was a favorite form of punishment in the early days, and continued to be inflicted until after the Revolutionary struggle had ended. One of the first cases I have found when this penalty was imposed is

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at the court held at Chester, 3d day, Twelfth month, 1684, when the record states that "John Martin being convicted of stealing money out of ye house of Wil- liam Brown, was ordered twelve stripes on his bare back, well laid on, at the common whipping-post at Chichester, the 4th inst., between the ten and eleven hour in the morning." Samuel Jury, Aug. 29, 1704, for being the father of an illegitimate child, was sen- tenced "to be whipt with twenty-one lashes on his bare back, well laid on, and pay for the maintaining of said child as the law directs." This is the only instance, so far as I have learned, of a man being subjected to corporal punishment for this offense. May 25, 1708, "Grace Phillips was sentenced to be whipt with twenty-one lashes, well laid on, at the common whipping-post in Chester." The last time when I find records of this corporal punishment be- ing imposed is at the November court, 1788, when John Tully, convicted of horse-stealing, was sen- tenced to be whipped. The case will be referred to hereafter.

The punishment by whipping, to our modern ideas, was most cruel, and that it was extremely painful we have the authority of the editor of the London Medi- cal Times, who a few years ago witnessed the flogging of a wife-beater at Newgate. The degradation of the punishment and the effect the shame had upon per- sons of sensitive natures is well shown in a case re- corded by Watson, wherein a negro, in 1743, who was brought to the whipping-post in Philadelphia to be scourged, took a knife from his pocket, and in the pres- ence of the crowd, cut his throat, dying immediately of the self-inflicted injury.

May 10, 1698, the Assembly passed a supplemental law respecting "robbing and stealing," whereby for the theft of any article amounting to five shillings or upwards, in addition to fourfold restoration of the value and public whipping, the punishment was in- creased, the culprit being " ordered by the court, upon penalty of banishment, to wear such a badge or mark of his or her thievery upon the outside of his or her outer garment in open view, upon the outer part of the Left Arme betwixt Elbow & Shoulder att all times when ever hee or shee shall travel or be seen from his or her habitation or plantation where hee or shee shall live on every day from Sun rising unto Sun setting, for the space of six months, which mark or badge of his or her thieving shall be thus, with a Ro- man T, not less than foure inches in length each way, and an inch in breadth, of a different colour from his or her said out garment either Red, Blew, or Yellow, as the Justices of the said court shall direct." This law, or rather the similar one of 1700, remained in force until superseded by the act of Feb. 24, 1721. Under its provisions we find that at the court held at Chester, Third month 26, 1702, Benjamin Patterson being convicted of breaking into the house of Joseph Baker, of Upper Providence, and stealing ten pieces of eights, "the court gave judgment for two pounds

eight shillings, to be paid to Joseph Baker, with law- ful fees and" (Patterson) "to be whipt with eleven lashes on his bare back and wear a T according to law of yellow colour." Patterson was also sentenced to serve Joseph Baker, his master, one and a half years in consideration of the damages he had sustained. The graphic picture which Hawthorne, in the "Scar- let Letter," has drawn of Hester Prynne, who "on the breast of her gown, in fine red cloth, surrounded with an elaborate embroidery and fastastic flourishes of gold thread, appeared the letter A," will recur to almost every reader. Although the persons who wore the insignia of their shame among their fellows in this county, in colonial days, may not have as romantic a story as that the novelist has elaborated, doubtless they felt keenly the degradation the hated letter en- tailed upon them. It is unnecessary to refer to all the cases in which this punishment was imposed. Suffi- cient is it to my purpose to state that the last instance which I find of this penalty being inflicted was at the court held Aug. 28, 1716, when John Eburnethy, con- victed on two indictments, was sentenced to receive twenty-one lashes on each judgment and to wear a Roman T, of a blue color, not less than four inches each way and one inch broad, for six months, and also to wear a Roman T, of a red color, of the like size, for six months.

Standing in the pillory was one of the ordinary punishments of our colonial days. The first case in which this penalty was imposed that I have found was at the court held at Chester the third day of the first week, 1689, when Thomas Lasy, an indentured servant of Richard Few, who was convicted on his own confession of counterfeiting pieces of eights, "and a bartering and exposing ye same for goods and other merchandize," was sentenced to stand "at ye Public Place of Correction att ye Town of Chester two Several Court days three hours each day with a Paper of his Crimes written in Capital letters afixed upon his Brest, and that he remaine in ye Sherifes Custody until he gives good Security to perform this Judgment and pay his fine." That this sentence was carried out we know, for John Simcock informed the next court that Robert Wade was passing the place where Thomas Lasy was "Suffering ye last Courts sentance," and that Wade said aloud, " What law has he broken ? or what King's law hath he Broken ?" The court, very sensibly, seems to have taken no notice of Wade's remarks, although in those days the dignity of the bench was sternly maintained, as the following instances disclose: Abraham Buffinjall, at the court held the 3d day of Fourth month, 1685, being " lawfully convicted for abusing and menacing the magestracy of this county was ordered Twenty-one lashes at the public whipping-post on his bear back well laid on and fourteen days imprisonment at hard labour in the House of Correction ;" and at the court held at Ches- ter the "3d day of 1st week of ye 8th month, 1687," Jeremy Collett, "for his Insolency and abuse of ye

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Court and asserting laws which he could not Produce being thereunto required by the Court," was ordered to find security for his appearance at next court and to be of good behavior, "Butt upon refusal was Com- mitted to ye Sherifes Custody." At the following court he was fined five pounds, which fine he pe- titioned might be remitted, and "the Court considering his Petition and that he putts himself upon ye King and Govern't milligates his former fine and admitts him to a fine of ten shillings to be levied upon his goods, &c., and all manner of Court charges to Sherife & Clerks, &c." Standing in the pillory for stealing or receiving stolen horses after the act of 1767 meant something more than merely being exposed to the gaze of the idle populace. John Bartiff, at Chester, Aug. 9, 1780, was found guilty of horse-stealing, and was sentenced by the court to receive "twenty-nine lashes on his bare back well laid on, to have both his ears cutt off and nailed to the pillory, to pay all costs of prosecution, to be imprisoned six months and to stand committed until this sentence be complied with." On Nov. 28, 1780, Christian Gotlibb, con- victed of the like offense of an aggravated nature, was sentenced "to pay a fine of one thousand pounds, to restore the stolen property or the value thereof, to stand one hour in the Pillory to-morrow morning between the hours of eight and ten o'clock, to be whipped on his bare back with twenty-nine lashes well laid on, to have his ears cut off and nailed to the Pil- lory, to pay all costs of prosecution and to be impris- oned six months and to stand committed after till fine and fee is paid."

It is rather a peculiar circumstance in our county annals, then including Chester County, that after the passage of the act of Sept. 15, 1786, which specif- ically abolished the punishment of the pillory, whip- ping, branding, cutting off the ears of criminals and nailing them to the pillory for certain crimes, that on Nov. 27, 1788, John Tully, who was convicted of horse-stealing, was sentenced "to stand one hour in the pillory between the hours of nine and twelve o'clock to-morrow morning, to be whipped with thirty- nine lashes on his bare back, well laid on, to have both ears cut off and nailed to the pillory and to be imprisoned six months," besides the payment of a fine and the costs.

From the time of the promulgation of the "Duke of York's Book of Laws," in 1676, until the Constitu- tion of 1790 gave power to the judges of the several counties to hold Courts of Oyer and Terminer, all cases of great crimes were under the duke tried by the Court of Assizes, under Penn, by the Provincial Council, until the law of March 10, 1685, made it the duty of the judges of the Provincial Supreme Court to hear and determine " heinous and enormous crimes in the respective county courts where the said crimes were committed." Although this act was repealed in 1690, the same rule prevailed until changed by the second Constitution of the State. The first sitting of

the Supreme Court in a criminal case in Chester which I find was on Oct. 3, 1705. The suit is an interesting one, hence I give the proceedings somewhat at large:

" Wherese James Gibbons, of the county of Chester, yeoman, being bound over to this court (county court held May 28, 1705) to answer such matters and things as on the Queen's behalf shall be laid to his charge by John Hoskins, High Sheriff of the said county, appeared, whereupon the Attorney-General gave the court to understand that the crime laid to the charge of the said Gibbons amounts to Burgulary, and for the court further satisfaction then he produeth the Sheriffs examina- tion which being read ae followeth :

"Chester the 30th day of April 1704 the deposition of Jobn Hoskine, High Sheriff of the County of Chester, aged about twenty-seven years, being solemnly attested in the presence of God saith that last night about one o'clock James Gibbons, of the county, aforesaid, came with another person with him to this deponent unknown, sod did break open the lock of his etable door and took out a sorril horse with a bald face which this deponent as Sheriff had taken on execution and when this deponent ran to him he with the other person with him made his escape thro' the lot aod broke down the pails, whereupon this deponent seized on the horse with a halter on his head, which he supposes the said Gib- bons brought with him, and aleo found a club in the stable, he presumes they brought with them and further saith not.

"The circumstances of the fact being considered it is ordered that the said James Gibboos shall be and is hereby by the Justices colomitted into the jail of this County of Chester there to remain till he shall be deliv- ered by due course of law."

The case being called at the Supreme Provincial Court, Oct. 3, 1705, " the Sheriff was ordered to set the prisoner at the bar, which being done the indictment was read." (The indictment had been found by the grand jury at the county court.) "David Lloyd moved that he may be admitted to speak of matters of Law unto the indictment before the prisoner plead, which is granted unto him, whereupou he desire it may be inspected by this Court whether or no the Justices ses- sion had power by their commission at that time of taking that indictment to enquire of that burgulary in the indictment mentioned." The court concluded to hold the matter under advisement until the after- noon session, when they decided that the justices had no jurisdiction, and on motion of David Lloyd the defendant was admitted to bail. Gibbons appears, from the silence of the record, never to have been called on further to answer the charge.

The first trial for homicide in this county, so far as has been ascertained, was that of Hugh Pugh, a mill- wright, and Lazarus Thomas, laborer, who were in- dicted for the murder of Jonathan Hayes, a resident of Marple and a justice of the county, in the year 1715. At the October court of that year the following refer- ence to the trial will be found :

" This Court request Heory Worley, Robert Carter and James Sande- lauds to see if they cao procure some place yt may be more Convenient than the Court house for holding the Supreme Court for ye Tryall of those persons yt are holden in ye Gaol of ye County on Suspition of murder nod to muke such agreement as they may see needful for change aud damages to be payd out of the County stock."

The records of the county at West Chester, from 1710 to 1720, are very meagre, and little or no infor- mation can be had by an inspection of the court paper of the circumstances surrounding the case. We know, from the minutes of the Provincial Council, that the accused "had for several years appeared at the head

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History of Delaware County, Pennsylvania, Part 42

Author: Ashmead, Henry Graham, 1838-1920 Publication date: 1884 Publisher: Philadelphia, Pa. : L.H. Everts Number of Pages: 1150

Author: Ashmead, Henry Graham, 1838-1920
Publication date: 1884
Publisher: Philadelphia, Pa. : L.H. Everts
Number of Pages: 1150