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Ante-Bellum North Carolina: A Social History: Electronic Edition.

Johnson, Guion Griffis, 1900- 1989

CHAPTER XXII THE CRIMINAL CODE

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CHAPTER XXII
THE CRIMINAL CODE

           ONLY ONCE had the public mind been greatly agitated over reform in the court system; but frequently, from the opening of the century to the close of the period in 1860, the public was aroused over reform in the criminal code. When Hardy Carroll was hanged in Louisburg in the spring of 1845, the State press used his case as a means of stirring the public to vote for reform. "Perhaps there never was a case, which more strongly illustrated the want" of change, wrote the Raleigh Register of May 6. "He had a monomania for stealing and had been convicted capitally, we believe, three times for Horse stealing, but escaped each time, either by praying the benefit of Clergy, or through some defect in the record." He was finally hanged for grand larceny, the article stolen being a pair of suspenders.

CRIMES AND PUNISHMENTS

           Early in the century, Judge Taylor, while on the bench, pointed to defects in the penal code. Charging the grand jury of Edenton District Court, he said: "In some cases the punishment ordained by law may appear to us disproportionately severe," and it may seem "that the penalty of death is indiscriminately applied to acts of very different degrees of turpitude. It is believed that all persons . . . who calmly reflect on the legitimate ends of punishments, . . . will unite in the opinion that this is a defect of our criminal jurisprudence." 1

Later in the year Governor Alexander asked the Legislature to consider an amelioration of the penal code while it was making a change in the court system.

           From the opening of the century, scarcely a Legislature assembled without receiving a request either in the form of a petition or of a bill to alter the penal code of the State. In 1800 a bill before the Legislature proposed to abolish the death penalty for free



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persons except in murder of the first degree. 2 In 1815 Governor Miller, sending his annual address to the Legislature, said, "The first object that presents itself to my mind, is . . . whether our present penal code be in perfect accordance with our political institutions. . . . The principle will be conceded, that the end of punishment is the prevention of crimes. If that end can be attained by a system which substituted the reformation of the offender in place of frequent capital punishments, there certainly is room for a change. . . . Nor should we be deterred from enquiries upon this subject, by the repeated failures which a plan proposing a change has met with. All history attests the fact, that the progress of correct principles is slow, and that they must finally make their way 'by patient and diligent enquiry, by fair, candid, and liberal discussion.' " 3

           Despite the almost constant agitation to ameliorate the penal code which had been under way since the century opened, the criminal law had undergone few radical changes by 1817. In 1806 the Legislature allowed benefit of clergy to women; and in 1816, to slaves. In 1817 horse-stealing became a clergyable offense. But the code had also been tightened. In 1802 a person who killed another in a duel and his accessories were subject to the penalty of death without benefit of clergy; and slaves or free Negroes rebelling or conspiring to rebel were made punishable by death or transportation. In 1809 the Legislature ousted bigamy from the benefit of clergy; in 1801 and in 1817 it sought to remove any doubt as to the act of 1791 which declared the offense of killing a slave to be a homicide; 4

and in 1811 it tightened the statutes against counterfeiting.

           In 1817 the penal code of the State prescribed the punishment of death without benefit of clergy in at least twenty-eight instances: 5

arson; burglary; 6 murder; highway robbery; accessories before the fact in each of these four crimes; treason; housebreaking in the day time and taking off goods to the amount of 20 shillings;

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bestiality or sodomy; duelling; bigamy; stealing slaves or aiding them to escape; stealing free Negroes from the State and selling them; voluntary return of slaves transported from the State by sentence of court; rebellion of slaves or conspiracy to incite insurrection; free persons joining a conspiracy or rebellion of slaves; concealing childbirth; breach of prison by a person committed for a felony; counterfeiting notes of the Bank of North America; and the second offenses of manslaughter; forgery; horse-stealing; maiming by putting out eyes or disabling the tongue; counterfeiting or knowingly passing counterfeited bills of credit, public certificates, or lottery tickets; robbery except in a dwelling house or near a highway; larceny from the person to an amount of 12 pence or upwards; too great duress of imprisonment on the part of a jailor; embezzling or vacating records in a court of judicature; and embezzlement by a servant more than eighteen years old of his master's goods to the value of $10 or upwards.

           Any other crime punishable by death at the common law might also be punishable by death in North Carolina unless specifically prohibited by statute, for in 1778 the Legislature had declared "that all such parts of the common law, as were heretofore in force and use within this State, or so much of the common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State and the form of government therein established, . . . are . . . in full force within this State." 7

The existence of this great mass of unwritten and undigested law as a part of the criminal code of the State led to uncertainty and confusion. 8 This confusion, together with the extreme technicality in administering the law led to a movement for codification of criminal jurisprudence. For instance, Edward Cantwell, writing in his North Carolina Magistrate in 1856 said: ". . . the extreme technicality and irregularity of the law, the unnecessary difficulties which attend the obtaining of justice, the expense or tedious length of litigation, the uncertainty of issue, and the delay of decision are well known to all. . . . The condition of law in England, in comparison to those States of Europe--France for example--which have codes, shows very strikingly the disadvantages

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attending the administration of justice in countries which have no precise written authority to guide the judge, or to inform the people." 9

           But the common law had its advantages, as, for example, the benefit of clergy. By the benefit of clergy, first extended to clergymen as a means of exempting them from criminal process before secular judges, any one who could read might, after conviction of a crime, declare the fact and receive a punishment less severe than that prescribed by law. The Statute of 4 Henry VII, c. 13, prescribed burning in the hand upon conviction of clergyable felonies, but an act passed by the General Assembly of North Carolina in 1816 provided alternative punishment, such as one or more public whippings, or fine, or both. 10

In 1820 Chief Justice Taylor said in State v. Scott: "All felonies were clergiable at common law; that is all who could read were burnt in the hand." In the same case Judge Henderson pointed out, "At common law, all felonies (murder inclusive) were punishable with death." Then all persons who could read were extended the benefit of clergy and "thence it came to pass, that the most enormous crimes were unpunished. The Legislature perceiving this, hath proceeded from time to time, to take away the benefit of clergy from certain offences. The consequence is, that clergy is allowable in all felonies, but where it has been expressly ousted by statute." The custom of allowing benefit of clergy continued in this State during most of the ante-bellum period. The Code Commission of 1855 abolished it and prescribed instead that all persons might be punished as those had been previously who had claimed the benefit of clergy.

           Dismemberment was the punishment next most severe to that of death as prescribed by the penal code in effect in North Carolina in 1817. The crimes punished in this way were the first offense of maiming as to eye or tongue, perjury, subordination of perjury, the first offense of counterfeiting or constructing instruments for counterfeiting the bills of credit of 1783 or any public certificates, and the first offense of passing or attempting to pass knowingly such bills or certificates. The punishment, as in the case of perjury, was the loss of both ears and an additional punishment of a fine not exceeding £500, standing in the pillory for one hour, and



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a disqualification to give testimony thereafter; in the case of malicious maiming, the loss of both ears, standing in the pillory two hours, and the infliction of thirty-nine lashes on the bare back.

           All clergyable offenses were punishable, as has already been stated, by branding upon the brawn of the left thumb with the letter M in the case of manslaughter and the letter T in all other cases. Even before 1816, when fine was made a legal substitute for branding, whipping or fine was the usual punishment for manslaughter. 11

Branding was also prescribed in the punishment of a few crimes, for instance, the second offense of counterfeiting or knowingly passing any counterfeited foreign gold or silver coins. The punishment of this offense was branding on the right cheek, whipping, and imprisonment.

           A few crimes of major degree were punishable with the pillory, whipping, imprisonment, and fine, "all or any of them." They were the first offense of forgery, possession of instruments for counterfeiting, defrauding of valuable chattels, conspiracy to indict an innocent person, and blasphemy. The punishment for forgery was standing in the pillory for one hour, thirty-nine lashes on the bare back, imprisonment for not less than six months, and fine at the discretion of the court. Certain other crimes were punishable by the pillory and a fine or the pillory and imprisonment, as, for instance, malicious mischief, compounding information on the penal statutes, the second offense of selling unwholesome provisions, and granting a false certificate of marriage. A minister or clerk who granted a false certificate of marriage was liable to fine, imprisonment, and the pillory. A few other offenses were subject to whipping and a fine, as in the case of grand larceny, and a few only to whipping, as altering marks or mismarking stock, the first offense of counterfeiting or passing counterfeited gold or silver coins, and petit larceny. Most trivial offenses committed by slaves or free Negroes were subject to whipping.

           The punishment for vagrancy, aimed especially at gamblers, prostitutes, and idle free Negroes, is especially significant in that it required the offender to give security for his good behavior and in default of it inflicted imprisonment for ten days. If the person repeated the offense after twenty days, he was deemed a vagrant and imprisoned a month. At the end of this time, if he did



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not pay the costs of his imprisonment, he was continued in jail until the next county court, when he was tried and, if convicted, hired out for six months to satisfy the costs. If no one would hire the offender the court might order him to receive thirty-nine lashes on the bare back. 12

           A few offenses might be punished by confinement in the stocks or the ducking stool. The punishment for drunkenness, for instance, was a fine of 5 shillings if committed on the Sabbath and a fine of 2 shillings and 6 pence if committed on another day; but if the fine was not paid the offender might be placed in the stocks for three hours. 13

Breach of the Sabbath and profane swearing in the presence of a court of record were also punishable by fine and the stocks. A common scold was indictable and punishable at common law by being placed in a ducking stool and plunged in the water.

           Numerous other offenses were subject to a punishment of fine and imprisonment, sometimes either or both at the discretion of the court. The principal offenses of this class were: maiming, assault and battery, affray, escape, bribery, extortion, breaking up an election, counterfeiting or knowingly passing counterfeited bank notes, hunting in the woods or permitting one's slaves to hunt in the woods with a gun by fire light, false imprisonment, and stealing a free Negro in the State or carrying him from one part of the State to another with intent to sell. The punishment for counterfeiting a bank note was imprisonment at hard labor for a period of from three to ten years and a fine of not more than $5,000; the punishment for fire-hunting, a fine of £20 and on failure to pay the fine imprisonment for a period not exceeding two months. By far the greatest number of offenses 14

punishable by statute or at the common law were subject only to a pecuniary penalty or to a

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pecuniary penalty and certain disqualifications, as in the case of issuing or bearing a challenge to fight which was punishable by a fine of £100 and ineligibility to hold an office of trust, honor, or profit in the State.

           There had been "cruel and unusual" punishments in colonial North Carolina, 15

such as the castration of slaves in instances of rape of a white woman, amputation of the hand of a "notorious felon," disemboweling of the regulator, Captain Benjamin Merrill, but the Bill of Rights of 1776 forbade cruel and unusual punishments. After the passage of the Constitution, there were, however, a few such punishments in the cases of slaves. In 1805, for instance, a Negro woman was burned at the stake in Wayne County for poisoning four persons including her master and mistress; 16 in 1801 a slave was hanged for rape in Rutherford County "his head separated from his body and stuck on a pole as a terror to Evil doers and all persons in like cases offending." 17 But in 1812 when the Wake County Court ordered a Negro to be hanged and his body publicly burned, a petition signed by "a number of our citizens" protested against the burning as being contrary to the dictates of humanity and the governor remitted the order. 18

THE MOVEMENT FOR REFORM

           This protest was in keeping with the general movement looking toward the amelioration of North Carolina's "cruel and oppressive penal code." The reformers considered the act of 1817 making horse-stealing a clergyable offense to be the first real victory for the movement. Speaking in the same Legislature which passed this act, Frederick Nash of Hillsboro, later chief justice of the Supreme Court, dramatized the movement for reform in an oration quoted for years afterward: "I pledge myself, as long as



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I have a seat on this floor, this subject shall neither sleep nor slumber; I will continue to raise my voice in behalf of justice and humanity; I will not cease to display before gentlemen, the black catalogue of sanguinary punishments which disgrace our criminal code--to urge them to rescue our common country from the foul reproach of being the last of her sister States in laying aside that sanguinary code which we inherited from our mother country.

           . . For what cause are we at liberty to take the life of our fellow-creature? I contend, only for one--and that is murder." Turning upon those who declared that a penitentiary, erected to ameliorate the punishments of hanging, branding, dismembering, and pillorying to that of imprisonment, would be too expensive for the State to undertake, he said scornfully, "True it will be expensive --And is North Carolina too poor to be just? Must she hang her citizens as being not able to bear the expense of saving their lives?" 19

           The list of crimes and punishments under the Revised Statutes of 1837 seemed only too black to the reformers. The number of crimes punishable by death had actually increased partly because of the repressive measures aimed at preventing the corruption of the slave population and partly because of a more specific definition of the common law in certain instances; but the movement for reform had also made definite gains. In 1818 concealing the birth of an illegitimate child was changed from a capital offense to a misdemeanor, but the mother was liable to indictment for murder in case of the child's death. The following year the Legislature ameliorated the code with respect to counterfeiting. It was still a felony but punishable by fine, imprisonment, the pillory, and whipping instead of by death. After having been ousted from clergy for twenty years, bigamy again became a clergyable offense in 1829. The Legislature also yielded in 1831 to an agitation which had been going on for many years to abolish dismemberment and ordered that ears should be cut off only in case of perjury upon trial of a capital offense. The Revised Statutes amended the punishment for embezzling records in a court of judicature, making it a misdemeanor in every case instead of punishable by death on the second offense.



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           While pointing to these gains in their fight for "humanity in the law," the reformers might have felt defeat in the list of new offenses punishable by death. In 1823 the Legislature made an assault by a free person of color with attempt to commit rape upon a white woman punishable by death without benefit of clergy. By three acts passed respectively in 1825, 1832, and 1833, conveying or concealing a slave with intent to enable him to escape out of the State became a capital offense without benefit of clergy. In 1825 burning public or toll bridges became a capital offense; and in 1830 burning the State House or any public or county office, a capital offense without benefit of clergy. Also in 1830 the second offense of circulating seditious publications among slaves or of inciting insurrection among slaves by word of mouth became punishable by death without benefit of clergy. In 1831 the Legislature ousted castration from the benefit of clergy, formerly a crime subject to death only in the second offense. The Legislature had also increased the list of misdemeanors: retailing liquor by the small measure without a license, trading with slaves, teaching slaves to read and write, harboring runaway slaves, issuing a license for marriage between a white person and a person of color, conducting a lottery or selling lottery tickets.

           The agitation for reform continued with the years. It was said on the floor of the Legislature and repeated through the public press that "North Carolina has the bloodiest code of laws of any state in the Union." 20

With the appearance of the Revised Code of 1855 21 the movement for reform could boast the greatest gains of the period. Housebreaking in the day time was no longer a capital offense nor were the second offenses of bigamy, horse-stealing, forgery, embezzlement by servants, and malicious burning of public bridges. Only one additional offense punishable by death had been added, obstructing railroads whereby death or crippling ensued. The Code now specifically called for the death sentence in seventeen crimes: arson, bestiality or sodomy, burglary, castration, duelling, highway robbery, infanticide, insurrection, murder, obstructing railways, rape and attempt to commit it, stealing free Negroes from the State or selling them, stealing slaves or aiding them to escape, and for the second offense of circulating seditious publications,

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cations, exciting insurrection, malicious maiming, and manslaughter. But the Code specifically defined who should be deemed accessory before the fact and accessory after the fact, prescribing that offenders in the first instance be punished as the principal felons and in the second instance as misdemeanants.

           The Code abolished the benefit of clergy, prescribing specific punishments in certain cases and ordering in all others "imprisonment at the discretion of the court not exceeding two years; or if the offence be infamous, the court may order also . . . one or more public whippings," the pillory, or a fine, "regard being had to the circumstances of each case." The Code retained the punishments of branding, whipping, and the pillory. It retained dismemberment in the case of perjury on a capital offense, although it spared the left ear; but it ordered that white women be imprisoned instead of branded or whipped. The Code also abolished the distinction between grand and petit larceny and declared that counterfeiting should be punished as forgery: one hour in the pillory, thirty-nine lashes on the bare back, imprisonment from six months to three years, and a fine, all or any at the discretion of the court. By an act of 1840, the Legislature had abolished whipping as a punishment for vagrancy and had ordered that such offenders be no longer hired out for the payment of costs. 22

           During the years since the publication of the Revised Statutes, the Legislature had increased the list of misdemeanors so that there appeared such new offenses with specific punishments, as: removing and defacing tombstones over the dead; voting fraudulently at elections; constructing or operating faro banks; stealing, destroying, or concealing wills of living or dead persons; polluting well or spring water; maliciously injuring plankroads, turnpikes, canals, or railroads; destroying or defacing public buildings, churches, outhouses, or fences; wilfully killing or injuring live stock running at large in the range; altering the marks on ton timber; extortion and blackmail by letter.

           The reformers, however, found little comfort in the gains set forth in the Revised Code of 1855. They wanted a complete revision whereby all "cruel and barbarous punishments" such as dismembering, the pillory, and public whipping should be abolished. 23



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Edward Cantwell, writing in his North Carolina Magistrate of 1856, said of the Revised Code: "It would be well for the people of North Carolina seriously to reflect whether notwithstanding all the labour and expense just bestowed upon the new compilation of her statute law, they are not yet to expend more and to learn that legislative wisdom is not displayed in the multiplication of enactments, and especially in the multiplication of penal enactments; that it is far easier to destroy the citizen than to amend the state; . . . And besides, while doubts so widely prevail upon the right to take life, perhaps, it were well to inquire if such severe, indefinite and final punishments as yet disgrace our law do not increase, instead of diminish the number of offenders, . . ." 24

IMPRISONMENT FOR DEBT

           An amelioration of the law, for which the reformers had been working many years, was the abolishment of imprisonment for debt. Imprisonment for debt, however, was a civil procedure and not a punishment imposed by criminal law. Article 39 of the Constitution had ordered "that the person of a debtor, where there is not a strong presumption of fraud, shall not be continued in prison after delivering up, bona fide, all his estate, real and personal, for the use of his creditors," but imprisonment for debt, in one form or another, continued throughout the period. At common law an "insolvent debtor" was subject to imprisonment at the will of the creditor until the debt was paid. By an act of 1773, however, a person charged of debt, after twenty days in close prison, might prefer a petition to two justices, to the county court, or to a judge of the superior court, in or out of court, who should summon the creditors to appear on an appointed day with a list of the debts properly certified. The debtor might then take an oath "that he hath not the worth of 40 shillings sterling money, in any worldly substance . . . over and besides his wearing apparel, working tools, and arms for muster and that he hath not at any time, since his imprisonment or before," secretly conveyed away his property. Having taken the oath, the prisoner might be discharged, "but execution may issue against any estate afterwards



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acquired by such insolvent debtor." In case the debtor was possessed of property above the value of 40 shillings, he might be discharged from prison on giving up his property to the benefit of his creditors. The sheriff then proceeded to sell the property at public vendue and deposit the money with the clerk of the superior court. The judge of the court appointed two commissioners who examined the claims of the creditors and apportioned the sum among them. A debtor thus discharged was not subject to imprisonment twice for the same debt but any property which he thereafter acquired was subject to seizure, until the full amount of the debts had been satisfied. 25

           By an act of 1741 establishing prison bounds, confinement in prison might be figurative. This act permitted the county court to lay off bounds to the extent of six acres "for the preservation of the health of such persons" confined in prison. By giving bond to keep within the prison bounds, made out in the case of the debtor to the benefit of the creditors, the prisoner might have his liberty. 26

If, however, the jail was located in an isolated spot, the bounds afforded the prisoner little comfort. A bill of 1815, for instance, sought to increase the prison bounds of Halifax County to include the town of Halifax so that debtors might have an opportunity of attending worship and pursuing their trades. 27 But an act of 1809 declaring that a person imprisoned for debt should not be allowed to take the oath of insolvency unless he had continued within the walls of the prison for twenty days placed contradictory laws upon the statute books and threw the question into confusion. In at least one instance, a man in New Bern was required to keep within the prescribed six acres for a period of more than three years because of a dispute over whether his oath of insolvency freed him from the obligation to keep within prison bounds. 28 To prevent a similar occurrence, William Gaston of the Judiciary Committee wrote a bill which the Legislature of 1818 passed into law declaring that a debtor, except in cases of doubt as to fraud, might not be compelled to go into close prison to obtain relief from his debts. In 1829 Judge Archibald D. Murphey, the most distinguished person of the period to suffer imprisonment

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for debt, chose to remain the allotted twenty days in jail rather than to avail himself of the benefit of prison bounds. 29

           Singularly enough, Murphey had in 1816 introduced a bill in the Senate asking that "honest and unfortunate prisoners" be allowed the freedom of prison bounds. 30

Earlier than this, a movement had been underway to lighten the condition of the insolvent debtor. In 1808 the Legislature exempted from seizure "a bed and its necessary furniture" and in 1810 added to this list "one wheel and cards, also one loom." In 1812 J. J. Daniel introduced a bill in the House calling for complete abolishment of imprisonment for debt. In the Legislature of 1816 two bills appeared seeking to lighten the condition of the honest debtor and in 1818 William Gaston, while obtaining the passage of the law extending the benefit of prison bounds to the honest debtor, at the same time reported unfavorably on a motion to abolish imprisonment for debt entirely. 31

           In 1820 the governor called attention to the need of reform and J. A. Cameron introduced a resolution in the House saying, "Indiscriminate imprisonment for debt is oppressive, unjust, unreasonable, and inimicable to the spirit of our Constitution, and ought not to be tolerated." 32

The Legislature, accordingly, hastily passed a general law abolishing imprisonment for debt except in cases where there was strong presumption of fraud. Such a protest arose that the Legislature repealed the law the following year, some pointing out that the act was ex post facto and, therefore, unconstitutional and others that it encouraged the evil of too extensive credit. In 1822 the friends of reform obtained the passage of another bill exempting debtors from imprisonment when they gave bond for their appearance at the next meeting of court, pledging themselves to make a full and honest surrender of their property. The court then decided whether the debtor was entitled to the benefit of taking the oath of insolvency. "We rejoice that this remnant of feudal tyrrany is abolished," wrote the Raleigh Register of January 3, 1823. "Poverty and crime will no longer in this State, at least, be punished alike. No helpless family will be deprived of its natural protector, because he has been unfortunate." In 1823 the Legislature ordered that "no female whatever shall be imprisoned for debt."



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           Although the Legislature provided in 1830 that a debtor convicted of fraud might be freed from imprisonment when he made a full return of his property, it was not until the act of 1844 that the newspapers of the State thought that imprisonment for debt would now become rare in North Carolina. 33

By this act a debtor might not be imprisoned unless the creditor made affidavit in writing that the defendant did not have sufficient property to satisfy the judgment, that he had fraudulently concealed his property, or that he was about to remove out of the State. By an act of 1848 the Legislature exempted from seizure for debt personal property to the amount of $50; and by an act of 1858, a homestead to the value of $500. The Constitution of 1868 again stated, but in words different from those of the Constitution of 1776, that "there shall be no imprisonment for debt in this State, except in cases of fraud." It is possible for a person to be imprisoned for debt to this day, but, as stated by the court in State v. Norman, "It is not the failure to comply with the contract which is made criminal, but the fraud in making it. 34

TYPICAL CRIMES

           The offense most frequently committed in North Carolina from the opening of the century to the close of the period in 1860 was that of disturbing the public peace. To this class belong such misdemeanors as assault and battery, affray, riot, rout, and unlawful assembly. The next most frequent offense was that against public morality and decency. Fornication and adultery and bastardy were the offenses of this order most frequently committed in North Carolina. Bastardy cases seldom came up for trial. Usually the reputed father came into court, admitted the charge, and gave bond for the support of the child according to law. 35

Occasionally the court recorded that the accused man was "not found" or that he had "gone West." Less frequently he denied the charge, a case was made up, and a jury decided upon the facts as presented.

           The third offense most frequently committed in ante-bellum North Carolina was that of being a public nuisance. Those most likely to be indicted in this manner were habitual drunkards, gamblers, prostitutes, common scolds, and petty trouble-makers, although a person committing annoyances in public roads, rivers, and bridges by actual obstruction or the neglect of repairs, and a



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person establishing a manufacture in such a place as to render the enjoyment of life and property uncomfortable were also liable to indictment as a common nuisance. The fourth most frequent offense was that of petit larceny, theft of an article under the value of 12 pence; the next, that of trespass; and after this, a host of misdemeanors punishable by fine.

           This list of offenses committed in the State between 1800 and 1860 is based upon a record of 4,397 crimes obtained from manuscripts in the Legislative Papers and from an examination of county court records available in the archives of the North Carolina Historical Commission. A frequency table made from offenses recorded in Orange, Cumberland, Edgecombe, and Rutherford-county courts during three five-year periods, 1801-1805, 1831-1835, 1851-1855, summarizes the results as follows:

          

OFFENSES HEARD IN NORTH CAROLINA COUNTY COURTS 36

Offense Number Per Cent
Assault and battery 538 48.0
Affray 146 12.1
Bastardy 134 12.0
Petit larceny 55 5.0
Disturbing the peace 52 4.5
Trespass 29 3.0
Retailing liquor without license 26 2.3
Fornication and adultery 26 2.3
Common nuisance 24 2.1
Misdemeanors, unnamed 24 2.1
Trading with slaves 23 2.0
Not stated 19 1.8
Miscellaneous 11 1.0
Slander 10 .9
Unlawful fence 10 .9
Total 1,127 100.0

           Of the 1,127 cases arising in Orange, Cumberland, Edgecombe, and Rutherford county courts during the periods indicated, 736, or 64.6 per cent were offenses against the public peace. Assault and battery alone accounts for almost half of the total number of offenses recorded. Offenses against good morals rank second on



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the list, with 160 cases, or 14.3 per cent of the total, and petit larceny ranks third with 55 cases. The county court, it must be remembered, did not hear cases the punishment of which extended to life or member, and, therefore, no conclusion can be drawn from these figures as to the extent of felonies committed in the State.

           A better idea of the proportion of felonies to the total number of offenses committed may be obtained from a list of 1,734 cases collected by a Legislative Commission of 1816 for the period, 1811-1815. Returns were obtained from thirty-six superior courts and twenty-eight county courts, giving a slightly greater emphasis to the number of felonies than might have been obtained had the number of county and superior court returns been equal. Unfortunately for the purpose of this study, the Commission asked that the court clerks make no returns on cases of assault and battery, bastardy bonds, or peace warrants. With these omissions, the offenses heard in sixty-four courts between 1811-1815, listed in the order of their frequency, are as follows:

          

OFFENSES HEARD IN SIXTY-FOUR NORTH CAROLINA COURTS, 1811-1815 37

Offense Number Per Cent
Common nuisance 369 21.22
Petit larceny 332 19.03
Fornication and adultery 178 10.21
Riot 152 8.84
Miscellaneous misdemeanors 114 6.60
Murder 89 5.13
Perjury 88 5.08
Affray 87 5.02
Grand larceny 45 2.60
Conspiracy 38 2.20
Trespass 36 2.10
Forgery 25 1.44
Miscellaneous felonies 24 1.40
Disorderly house 23 1.32
Maiming 21 1.21
Burglary 20 1.16
Deceit 20 1.16
Rescue or escape 20 1.16
Malicious mischief 19 1.10
Retailing liquor without license 15 .88
Forcible entry and detainer 11 .64
Libel 8 .50
Total 1,734 100.00



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           The offense of creating a common nuisance led all others on the list, accounting for 369 cases, a little more than a fifth of those reported. Petit larceny came next with 332 cases, slightly less than a fifth of the total, and fornication and adultery third with 178 cases, or a little more than a tenth of the total. Riot and affray, more serious crimes against the public peace than assault and battery, accounted for 239 cases, or 14 per cent of the total. It is an interesting fact that the major offenses, murder, perjury, grand larceny, conspiracy, forgery, maiming, burglary, rescue and escape, and the miscellaneous felonies account for 370 cases, or 21.38 per cent. Murder heads the list with 89 cases and perjury follows with 88.

           When a list of offenses committed in North Carolina was next laid before the Legislature, cases of assault and battery were not ruled out. Governor Dudley, at whose request the court clerks made returns, did not furnish the clerks with specific instructions with the result that many neglected to report bastardy cases and peace warrants. This list, which the governor laid before the Legislature of 1840, was of crimes committed in twenty-seven county and twelve superior courts in 1839:

          

OFFENSES HEARD IN THIRTY-NINE NORTH CAROLINA COURTS, 1839 38

Offense Number Per Cent
Against the public peace 1,045 72.78
Misdemeanors 241 16.78
Against morality 110 7.66
Felonies 40 2.78
Total 1,436 100.00

           In 1839 crimes against the public peace, assault and battery, affray, and riot account for almost three-fourths of the total, an even larger proportion than that obtained by sampling the county court records during three different periods between 1800 and 1860. Fornication and adultery and bastardy compose 7.66 per cent of the cases, a much smaller per cent than that obtained from the county court records; and all other misdemeanors account for 16.78 per cent. As might be expected with the small number of superior



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court cases reported, the felonies account for only 2.78 per cent of the cases.

AGITATION FOR A PENITENTIARY

           It was not of North Carolina's largest class of offenders that the reformers were thinking when they declaimed against the criminal code. It was not a hardship to be hauled into court and fined 5 cents and costs or even $10 and costs for striking a man or to enter bond for $250 for the support of a bastard child. The reformers were thinking of the large class of misdemeanors punishable by the lash and the pillory and of the long list of felonies punishable by death.

           The movement for which the reformers worked most earnestly was the establishment of a penitentiary, to be owned and operated by the State for the reformation of the criminal class. The impetus for this reform was the philosophy of the inalienable rights of man and the social contract theory of government. "I presume there is not a gentleman on this floor, who will hesitate to pronounce it right," said a member of the House in advocating the penitentiary bill in 1801. It is "founded on the natural rights of mankind, and consistent with the social compact in civilized society." 39

A bill to erect a penitentiary had been before the Legislature as early as 1791. When Joseph Gales began publishing his Raleigh Register in 1799, he at once lent its columns to the cause and filled page after page with a stenographic report of the debates on the penitentiary bills which occurred on the floor of the Legislature. The Register and later the Star, after its establishment in Raleigh in November, 1808, invited gentlemen to contribute essays on the subject and these papers, joined by other journals, such as the Hillsborough Recorder, the Greensborough Patriot, and the Western Carolinian, kept up the agitation throughout most of the ante-bellum period.

           In 1800 a bill to establish a penitentiary, originating in the Senate, had been defeated in the House. 40

Absalom Tatom of Hillsboro, a member of the House, bachelor, and philanthropist who freed his slaves by will and left his estate in trust for their use, was responsible for the penitentiary bills before the Legislature in 1801 and 1802. He would have abolished punishment of death in every instance except first degree murder. Rape, arson, burglary

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and highway robbery, crimes which later advocates of the penitentiary system were willing to punish by death, he would have punished by imprisonment of from three to twenty-one years. For the second offenses of counterfeiting and manslaughter, he would have imposed imprisonment for life in solitary cells. He would punish misdemeanants by imprisonment for terms varying from a few months to several years. His prison would have provided for the accommodation of seventy-five with cells, eight feet by six, built under ground. "I do not think it will answer the purpose to have cells above ground," said Tatom in defending his bill. "The intention of putting convicts into these cells, is to punish them for misbehaviour; they should, therefore, be as dark and dismal as possible. I have been in those of the Penitentiary House at Philadelphia, and to be sure they are horrid places; but after criminals have been there two or three days, they generally come out sufficiently corrected and reformed." 41 Tatom thought the penitentiary might be erected from a tax of 6 pence on the poll, 2 pence on every 100 acres of land, and 6 pence on every £100 valuation of town property to be levied over a period of four years. 42

           The debate on the bill continued several days on the floor of the House. The debaters spent much time in arguing the relative depravity of certain crimes, the right of the State to take human life, and the suitability of a penitentiary system to the state of society in North Carolina. Those who favored the bill pointed to its humaneness, the equalization and certainty of punishment which it provided, and the hope of reforming the criminal class which it held out. The opponents of the measure thought a penitentiary unsuited to North Carolina. In the first place, there was no cause for altering the penal code. "It is lamentable that vice prevails in society," said Theophilus Lacey of Rockingham, "but it does exist, and it has been necessary to provide laws to punish it. . . . I believe the people of this country live happily under" the present criminal law. He would not admit, in the second place, that the penitentiary system equalized punishments or even that it was humane. "I cannot believe this Penitentiary is calculated for humane purposes; since it proposes that an unfortunate criminal shall



Page 663

drag out, in some cases ten or twenty years, and in others the whole of his life, in prison; whereas if an offender was punished with death at once, he would be forgotten, and not be a living monument of misery and distress; but by the present bill, an offender who is now punished with death, would have to undergo a punishment in the Penitentiary, in my opinion, worse than death." 43 The great advantage of the present penal code was that the punishment was soon over. A criminal was hanged and quickly buried; branded and turned loose to nurse his wounds and support his family if he would; whipped and sent on his way.

           A third argument against the penitentiary was that it was unsuited to a rural population largely dependent upon tilling the land for a livelihood. "If the population of the country was great, and tradesmen numerous, such an institution might prove advantageous; but, unfortunately for us, this is not the case. . . . What point, then, could the State derive from this institution? No benefit will arise from persons confined in this House, who are unable to labour, . . ." 44

Clearly, then, the State could not make a penitentiary self-supporting and would yearly have to spend large sums for the support of the criminals confined there. This argument brought the opponents of the measure squarely to the objection on which they could count for the heaviest support in defeating the bill. One speaker estimated that a penitentiary would cost about $60,000, but that the proposed tax would raise only $8,000. "When the taxes now proposed to be laid, are collected and expended in building the Penitentiary, then a further and a heavier tax will be laid for the completion of the plan. Before we proceed to levy a tax on the people, we ought to have good reason for so doing. By thus acting we shall obtain the confidence of our constituents, and when taxes are really necessary, they will pay them without a murmur." 45

           An objection raised at this time was frequently heard there-after. For instance, in 1816 Governor Branch referred to it in his message to the Legislature. 46

"If we could afford to expend so large a sum of money . . . it would be much better applied, in my opinion, for the purpose of building Free Schools in different parts of the State; and, by these means, inculcate such principles

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in the rising generation, as would supersede the necessity of Houses of Correction." 47 To this argument, George Fisher of Rowan replied tartly, "This would not suppress roguery, no not if there were a school established in every county." 48 Another question, not stressed so much at this time but later paramount whenever the Legislature seriously considered the subject, was the location of the penitentiary. A majority of the friends of the measure wanted the institution located at Raleigh but there were those who would have preferred it in Fayetteville or Hillsboro. Starting an argument over the location became a trick which the opponents of the penitentiary used to divide the friends of the measure and thus defeat it.

           When the bill of 1801 finally came to a test it was defeated by a vote of 72 to 49, eastern and western representatives being divided in their opinions but with the preponderance of the eastern vote being the deciding factor in bringing defeat. During the long debate on the bill, William Watts Jones of Fayetteville had declared, "I hold it to be my duty to oppose the passage of any bill which would be attended with so many evil consequences as this would be, and hope to strangle, in its infancy, this darling child of the Gentleman from Hillsborough." 49

In support of the measure which Tatom had pledged himself to introduce in the Legislature of 1802, the Raleigh Register published a series of able articles on "Crimes and Punishments." Under the influence of Major Joseph Graham the Grand Jury of Morgan Superior Court recommended that the members of the Legislature from that district "aid and assist in bringing forward a bill and in passing it into a law." 50 In the same year Judge Taylor wrote in the preface to his volume of Reports that it was his "sincere and ardent desire" to see passed the amendment to the criminal law, which "has for some time past occupied the public attention," the citizens at large seeming to be "impressed with a conviction of the propriety of substituting in the place of the familiar code a mild and reforming system." 51 But Tatom's bill of 1802 met no better fate than before, the vote being 73 to 44, the eastern vote again defeating the measure. 52

           When a bill to establish a penitentiary next appeared in 1805,



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it was defeated on the second reading by an overwhelming vote of 91 to 27. 53 The bills of 1807 and 1808 were likewise voted down, 54 but in 1810 the Legislature appointed a joint committee to consider the subject and the bill which the committee reported had the best chance of the period to be passed. The bill had passed the House and on the second reading in the Senate the vote stood 30 to 30. The speaker, Joseph Riddick of Gates County, himself in favor of the bill, broke the tie by voting against it. 55

           In defending his vote, Riddick declared that he did not consider it his duty to take upon himself the responsibility of establishing a system which would revolutionize so completely the criminal code of the State. The measure which he refused to adopt was one of the most liberal which the Legislature had ever considered. It called for death only in the case of first degree murder; defined first and second degree murder; called for imprisonment in certain major offenses, such as horse-stealing, rape, maiming, burglary, and arson; and provided that all other punishments should remain as heretofore. 56

When this important measure was teetering upon the point of acceptance, the State was out of debt and actually in possession of a surplus. 57 Later came the hard times of the War of 1812. Within the next few years, the Legislature was persuaded by the extraordinary efforts of Archibald D. Murphey to turn its revenue into a program for internal improvements. After the defeat of the bill of 1810, a motion carried to have the bill printed with the laws, and the penitentiary question was again an issue in the Legislature of 1811.

           The next time the measure came up for serious consideration, other residents of Hillsboro, Frederick Nash and Archibald D. Murphey, were its champions. In July, 1815, the Raleigh Star began the publication of a series of articles on "the policy of erecting a Penitentiary in this State" written by a "Respectable Gentleman." In introducing the articles the Star said: "We have reason to believe that a large majority of the community are advocates for the Penitentiary system, and only require the subject to be favorably brought before them to ensure its adoption." 58

In his article of

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August 18, the Respectable Gentleman declared that "the pecuniary difficulties" confronting the erection of a penitentiary were trifling. "We want public spirit--that is the real obstacle." When the Legislature assembled, Governor Miller at once sent in a message calling for a change in the penal code. The two houses appointed a joint committee of which Archibald D. Murphey was made chairman. Murphey reported a bill on December 5 which was debated in the Legislature, in the press, and on the streets for ten days and then indefinitely postponed in the Senate. 59 A few days later, the Legislature acted favorably on Nash's motion to appoint a commission to investigate in detail the cost of erecting a penitentiary and to collect statistics on "the several criminal prosecutions (assaults and batteries excepted) for the last five years" from the clerks of the county and superior courts. 60

           In 1816 John Winslow of Fayetteville, reporting for the Commission, submitted "an elegant plan" for a penitentiary drawn by William Nichols, an architect of Edenton. Only 65 of the 123 clerks of courts made returns on criminal prosecutions, but the committee considered this sample satisfactory. (See facing page.)

           Realizing that cases of assault and battery far outnumbered all others, the Commission asked the court clerks to make no returns on this offense. Thirty-six superior court clerks and twenty-eight county court clerks made replies. The most apparent observation to be made from the table is the small proportion of convictions, less than one-half, to the total number of prosecutions, a result which the friends of reform had anticipated before asking the Legislature to make the investigation. The most glaring discrepancy in the number of convictions and the number of prosecutions was to be found in the offenses calling for severe punishment: murder, burglary, larceny, perjury, maiming. For instance, out of eighty-nine persons indicted for murder only twenty-six, or 29 per cent, were convicted. Fifty-one were dismissed entirely and twelve either made their escape and were not tried or were convicted of manslaughter. Out of 332 prosecutions for petit larceny, juries returned a verdict of guilty in only 87, or 26 per cent, of the cases. Evidently, they



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PROSECUTIONS IN SIXTY-FOUR NORTH CAROLINA COURTS, 1811-1815 61

NUMBER

Offense Prosecutions Convictions Dismissals
Common nuisance 369 219 120
Petit larceny 332 87 216
Fornication and adultery 178 79 87
Riot 152 81 97
Murder 89 26 51
Perjury 88 17 63
Affray 87 76 39
Misdemeanors, unnamed 70 60 14
Grand larceny 45 16 26
Miscellaneous misdemeanors 44 16 30
Conspiracy 38 13 19
Trespass 36 19 19
Forgery 25 6 16
Miscellaneous felonies 24 15 15
Disorderly house 23 4 7
Maiming 21 3 13
Burglary 20 7 12
Deceit 20 7 12
Rescue or escape 20 13 16
Malicious mischief 19 3 13
Retailing liquor without license 15 1 10
Forcible entry and detainer 11 11 0
Libel 8 0 7
Total 1,734 779 902

[61 MSS in Legislative Papers, 1816. Returns came from sixty-five courts as follows: the superior courts of Moore, Duplin, Rowan, Craven, Rockingham, Martin, Richmond, Montgomery, Camden, Person, Bladen, Brunswick, Granville, Sampson, Wilkes, Perquimans, Anson, New Hanover, Greene, Stokes, Cumberland, Northampton, Cabarrus, Rutherford, Halifax, Robeson, Washington, Wayne, Tyrrell, Surry, Guilford, Bertie, Lincoln, Edgecombe, Lenoir, and Orange and the county courts of Halifax, Mecklenburg, Guilford, Onslow, Duplin, Anson, New Hanover, Martin, Burke, Washington, Warren, Person, Bladen, Brunswick, Richmond, Northampton, Rockingham, Wilkes, Edgecombe, Moore, Granville, Pasquotank, Rutherford, Surry, Perquimans, Columbus, Craven, Rowan, Randolph. The returns from the Rockingham Superior Court were manifestly so inaccurate that they were not included in the table. The discrepancy between the number convicted or dismissed and the number prosecuted is due in part to the inaccuracies of the clerks in making their returns, to cases which had been entered on the docket but had not been tried, and to defendants who had either forfeited their bonds or otherwise had made their escape. In some cases, as miscellaneous felonies, for instance, more convictions and dismissals are listed than prosecutions. This is due to errors in tabulation made by the court clerks, errors, however, which do not distort the totals. In listing a trial for murder, on which a conviction of manslaughter was returned, the clerk usually listed one prosecution and no conviction under murder and no prosecution and one conviction under manslaughter.]

were not willing to pillory and whip a man and deprive him of his citizenship for stealing a twist of tobacco. The friends of the penitentiary bill were quick to point out that convictions might have been had in all cases except of reasonable uncertainty if the offender could have been sent to a penitentiary instead of being whipped, pilloried, cropped, or hanged.

           The bill of 1816 to erect a penitentiary originated in the Senate. This time, as heretofore, the issue was clogged with sectional prejudices arising over the location of the building, most of the



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time in debate being spent in arguing the relative advantages of Raleigh and Fayetteville. 62 Before the "harmonious" Legislature 63 of 1817, already deeply engrossed with internal improvements and public education, there appeared two bills for a penitentiary system, one calling for a State prison and the other for the erection of county poorhouses 64 which should also serve as houses of correction for the criminal class. Both bills shared the same fate, the penitentiary bill again being defeated after five test votes on the question of location. 65 It was during this debate that Frederick Nash of Hillsboro made his famous speech, exclaiming, "Is North Carolina too poor to be just?" 66--words which immediately became the battle cry of the reformers.

           But a battle cry, however stirring, had little effect in arousing "Legislators of North Carolina . . . from that lethargy" into which they had fallen. A penitentiary bill failed again in 1818. A new note was sounded in the Legislature of 1825 in opposition to the penitentiary system. Heretofore, legislative committees had praised the system, recommending it heartily to the Legislature, but now, for the first time, a joint committee in a lengthy report read by George E. Spruill advised against the system: ". . . the sanguine anticipations of the early friends of this system have not been realized. . . . At present . . . the opinions of the ablest statesmen and Politicians are too much at variance, as to the best mode of conducting and managing, to make it wise and



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politic in this Legislature to undertake the system. With the lights of a larger experience, and with more minute and extensive information than we now have before us; it may, at some future period, be a measure of wisdom and policy." 67

           With this defeat, the reformers girded themselves the better for the fight. In 1826, 1827, 1828, 1829, 1830 they presented bills to the Legislature, obtained the appointment of special commissions, attached a plea for a penitentiary to every motion in favor of hospitals for the insane and the deaf, a new humanitarian reform which now began to engage the Legislature. After a few years of passive agitation, the friends of the system had gained enough strength by 1833 again to become aggressive in the Legislature. By 1838 they were strong enough to obtain the passage of a resolution asking Governor Dudley to collect information concerning the erection of a penitentiary.

           In 1825 the Grand Jury of Chatham County had pointed out to the Legislature that juries were unwilling to convict under the barbarous State code and that the counties were thus burdened with heavy costs: "Lamentable to relate near forty indictments have come before this Court a great part of the cost of which must inevitably come out of our County treasury." 68

Newspapers and public speakers caught at the idea and played upon it as a means of answering the chief objection of expense which the opponents of the system had always used against it. The Legislature of 1827 appointed a committee to inquire into the cost of prosecuting insolvent offenders, but the committee received too little data on which to make a report. 69 In the issue of November 1, 1838, the Western Carolinian wrote, "It is a notorious fact that most of the charges in every county, arise from the trial and support of such as violate the law, and being unable to pay expenses, are a burden to the county."

           Governor Dudley, therefore, chose to interpret his instructions as authority to collect information concerning the nature and extent of crime in the State. The reports which he obtained may be summarized as follows:



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PROSECUTIONS IN THIRTY-NINE NORTH CAROLINA COURTS, 1839 70

NUMBER

Offense Prosecutions Convictions Dismissals
Assault and battery 765 421 121
Affray 245 107 69
Fornication and adultery 66 20 19
Misdemeanors 64 32 26
Bastardy 44 25 3
Common nuisance 39 12 20
Trading with slaves 37 9 7
Petit larceny 36 7 18
Trespass 23 10 11
Riot 21 8 5
Miscellaneous felonies 17 6 3
Disorderly house 17 5 10
Disturbing the peace 14 7 5
Murder 13 2 3
Retailing liquor without license 13 3 2
Miscellaneous 12 4 5
Grand larceny 10 4 1
Total 1,436 682 328

           Governor Dudley was not as careful in issuing his instructions to the court clerks as was the Commission of 1816, with the result that the returns were neither as accurate nor as numerous. Some clerks, professing to misunderstand the request, sent no returns at all, while others sent only partial returns. Governor Dudley did not rule out cases of assault and battery; consequently, these cases account for more than half of the total number of prosecutions. Yet even this number does not represent the total for the counties reporting. 71

The sheriff of Pasquotank County, for instance, did not

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list any cases of assault, saying, "The nature of the prosecutions in the County Court are generally A & B and retailing without License." 72

           While the report of 1811-1815 and the report of 1839 are not comparable, the one being a report of a five-year period made up of a large proportion of superior court returns and the other the report of a one-year period made up of a majority of county court returns, the increase in the number of convictions over dismissals is important. In the report for 1811-1815 the number of dismissals outnumbered the convictions by 115 while in the report for 1839 the convictions outnumbered the dismissals by 354. Actually there was not so great a difference between the number of convictions and the number of prosecutions as it would seem, for the report of 1811-1815 shows that 45 per cent of the cases prosecuted were convicted and the report of 1839 shows an increase over this number of only 2 per cent. It would seem, therefore, that the reformers were correct in saying that it was still impossible to get a jury to convict because of the severity of the punishment involved.

           Although several court clerks stoutly denied that the cruelty of the penal code lessened the number of prosecutions or convictions, others openly asserted this to be the case. The clerk of the Gates County Court wrote, "In 2 cases of Pet. Larceny the prosecutions were stopped in consequence of the severity of the punishment." 73

The clerk of Wake County reported that in a case of burglary charged against a slave "prosecution was not pressed and the defendent was carried off." 74 In a case of arson against a Negro boy twelve or thirteen years old, the jury returned a conviction but "the solicitor did not pray Judgement as supposed in consequence of the severity of the punishment" and the boy was "permitted to be sent out of the State." In another instance, a slave was indicted for murder, convicted of manslaughter, "branded, whipped, and sent out of the state." 75 In Beaufort County a white man, indicted for forgery, pleaded guilty and threw himself on the mercy of the court which ordered that he pay the costs and leave the State. 76

           Governor Dudley's report, although unconvincing to the Legislature



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of 1840, aroused the public. The North Carolina Standard declared a month before the sitting of the Legislature of 1842 that the State would soon have a penitentiary: "There never was a subject on which all parties seemed to be so much united--And if we can keep the matter out of the influence of party politics, we shall hope to see provisions made for the establishment of one, before the Legislature of 1842-43 shall have adjourned." 77 It was left for the Legislature of 1844-1845 to take the first decisive step of the period toward the erection of a penitentiary. More with an eye to their own future in politics than to the interest of reform, the legislators refused to assume the responsibility for establishing the system and passed the question on to a popular vote to be held in August, 1846, at the regular election for members of the Legislature. The proposition as submitted to the people through the columns of the State press called for a penitentiary costing $100,000.

           The reformers now went to work with pen and tongue. The Raleigh Register, the Star, and the Hillsborough Recorder, papers which had long agitated for the cause, filled their columns with lengthy and able essays. Although their opponent in politics, the North Carolina Standard joined in the campaign for victory. The Greensborough Patriot and Carolina Watchman quickly came to the support of the measure. "It is our candid opinion," wrote the Watchman on March 13, 1846, that if the people "are correctly and honestly informed" the penitentiary will receive their sanction by a very large majority. "But if it is made a party question, as we fear it may be (for party purposes), the result may be different." The Fayetteville Observer refused to join in the crusade, declaring in the issue of March 3, 1846, like the Watchman, that the question had become involved in politics.

           When the question at last came to a vote in August, it was overwhelmingly defeated. "The Penitentiary has been voted down by such a vote in this State," wrote the Raleigh Register of August 25, 1846, "that it may be said to be dead and buried; never again to have a resurrection." As the newspapers had predicted before the election, the question was not decided upon its merits. The North Carolina Standard of September 16, 1845, put its finger directly on the real issue: ". . . the State is in debt on account of



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Rail Roads, &c. and numbers doubtless voted against it because they were opposed to any increase of the public taxes." Two years later, however, Dorothea L. Dix, an inspired agitator, was able through her own enthusiasm, combined with fortuitous circumstances, to push through the Legislature a bill establishing a State hospital for the insane which called for an expenditure of public money only slightly less than a penitentiary would have cost. 78

           But, as the Raleigh Register had said in 1846, the penitentiary question was dead and buried, not to be resurrected again until the Constitution of 1868 called for the establishment of the system. In 1850, Woodfin sought to revive the issue by a bill to improve the county prisons and make of them houses of correction, but neither he nor those who came after him in the decade of the fifties could arouse any sympathy for the criminal. Reform was still being agitated, nevertheless.

           Some of the reformers, however, notably Edward J. Hale of the Fayetteville Observer, had come at last to oppose the penitentiary system. Writing in the Observer of April 25, 1859, Hale said:

           The people of North Carolina voted wisely, some years ago, against the establishment of a State penitentiary. Their principal objection to it was, we believe, the cost; but in our opinion the pernicious effects of the system upon society and upon convicts furnishes a stronger reason still. . . . "When a man commits murder . . . hang him; when he swears to a lie, crop him; when he steals, whip him. . . . But do not put him in a penitentiary, with a crowd of the worst of mankind, that he may there study villainy, and graduate proficient in every species of crime." . . . it is not found that crime is frequent or increasing in North Carolina--at least not increasing with rapid strides as in other States. And the reasons doubtless are, that criminals (not all, but many) are convicted and punished in North Carolina, and not either suffered to escape altogether or sent to a penitentiary to be educated in crime.

THE RESULTS OF A DO-NOTHING POLICY

           The result of North Carolina's decision to turn its back upon a prison system was that crime often went unpunished, a fact already referred to in the debates on the penitentiary question. As early as 1801 the friends of the penitentiary system were pointing out that "the majority of the enlightened of this State . . . do conceive



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it to be cruel and unjust to take life for property. . . . Juries will seldom convict a man of horse-stealing; . . . and the consequence is, that they go unpunished altogether." 79

           In 1806 Judge Taylor, charging the Grand Jury of Edenton Superior Court, warned against letting the severity of the punishment deter them from finding a culprit guilty. "Juries," said he, "ought ever to be on their guard against being influenced to acquit guilty men from any consideration drawn from the severity of the punishment which awaits them." 80

Nine years later in his charge to the Edgecombe Grand Jury he issued the same warning at greater length:

           How far the inexecution of the law may have proceeded, in some cases, from the apparently undue severity with which crimes are punishable, and the hope--nay, the certainty of impunity, thus held out to criminals, is a subject which calls loudly for legislative consideration. Whatever facilitates the escape of criminals, multiplies crimes in the same degree. Whether the justice of the law is intercepted because informers are reluctant to prosecute, because the lenity of juries prompts them to acquit, or because through executive clemency pardons are uniformly granted upon conviction of certain offences, the effect is equally injurious to the public.

           The result was that "some crimes are to pass totally unpunished, some property is to remain wholly unprotected, some laws are to continue in the statute book, to which obedience shall never be enforced on account of their severity." Judge Taylor would mention in particular two crimes which seldom received the punishment prescribed by law, the murder of slaves 81

and horsestealing: "Among the accusations for capital crimes, none occurs more frequently in the courts than that for the murder of slaves. Convictions have, in a few instances, though rarely, taken place; but I believe not one execution has ever followed. . . . It is generally believed that the punishment of death is too severe for the crime of horsestealing." 82

           In consequence of this unwillingness to execute the law, crimes rapidly increased. "It is a fact, which may be confirmed by an inspection of the dockets, that crimes have increased in many counties of this circuit, to an alarming degree. Some of them, too, are



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of a complexion that denotes the utmost licentiousness of manners, an entire debasement of morals, and habitual disregard of the obligations of law, the ties of conscience, and the decencies of civilized life." 83 To combat this crime wave, due also, no doubt, to the psychology of war and the economic pressure accompanying it, moral societies began to be organized over the State. 84 In Raleigh on January 30, 1815, a group of citizens organized the "Raleigh Association for the suppression of vice and for the promotion of morality and good order." 85 The Salem Society for the Protection of Property had been organized before the opening of the century. Every respectable person within twenty-five miles of Salem might become a member by paying 50 cents. When property was stolen from a member, all were obligated to help detect the thief and bring him to trial. In special cases, the governing body of the society appointed one or two pursuers at the expense of the common fund. The society had been especially successful in detecting horse thieves, but in 1815 Emanuel Shober and Horatio Hamilton, officers of the society, were complaining that for some time past the spirit of the society had begun to languish. 86

           The complaint that criminals in North Carolina escaped punishment because of the severity of the penal code continued throughout the ante-bellum period. During the debate over the penitentiary bill in the Legislature of 1818 it was stated on the floor of the House that "the present criminal code of this State . . . is dead; for, through the humanity of the Juries and the Governor, it has become a mere nullity. The State is saddled with the expense of imprisoning and supporting criminals and furnishing courts of justice; and finally, they are let loose to commit their depredations on society as formerly." 87

Speaking in the same debate, John Stanly of New Bern called upon the Legislature to "relieve the consciences of prosecutors and jurors from the dread of the stain of blood." 88 In 1846 the Fayetteville Observer declared: "The difficulty now experienced in convicting any one of a crime, which our laws would visit with capital punishment, is universally admitted and universally acknowledged to be a great evil. And it is a growing evil." 89



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           Throughout the period a complaint might also be heard in the press, in the legislative halls, and on the bench against the governor's too frequent use of the power to pardon. 90

For instance, in 1815, when the governor pardoned a man convicted of whipping a Negro to death, the circumstance was loudly protested in the Star. "I can only answer for myself and some of my neighbors," wrote a correspondent in the issue of November 10. "We consider what you call clemency as an encouragement to murders. Good men, lovers of justice and order, will hereafter look upon the attempt to bring criminals to justice as useless trouble, if the governor is to step in and screen them from punishment. . . . If Executive clemency is too often interposed, let us alter the Constitution, and take from the Governor the power to pardon. Something must be done or we shall become a bye word among the nations."

           In 1824 and again in 1827 a legislative committee considered "the expediency of providing against the power of executive pardons" and in both instances reported that, although "this power has been greatly misapplied" in some cases, "your Committee would prefer that the power should remain unrestricted as it now is, rather than abolish it altogether." 91

The governors continued throughout the period to grant pardons when the convicted person obtained a favorable statement from the judge before whom the trial was conducted, a recommendation for mercy from the jury which brought in the verdict, and a petition from respectable inhabitants of the county in which the condemned person resided or was found guilty. 92 In 1853, the Raleigh press thought that the governors were using the pardoning power with more discrimination. "There is evidently a more healthy tone growing up in regard to carrying out the requisitions of the law. . . . The Executive is gradually acquiring the moral firmness to disregard the whining appeals of false philanthropists, and the law is permitted to take its own course." 93



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PUBLIC EXECUTIONS

           Although the Raleigh Register would have the law take its own course, the newspaper wanted the execution of the law to be carried on behind closed doors. The execution of public justice "must not any longer be permitted to be a show, a spectacle ranking no higher in moral effect than the performances in a circus or the excitement of a bull-fight," wrote the Register in 1853. "The day has gone by when executions were supposed to operate by example. . . . What moral effect can be produced, when half of those, who surround the last foothold the wretched criminal has upon time, are either too engrossed in the spectacle as an object of curiosity or have their feelings so blunted by that excessive indulgence in drink, which is apt to attend the congregation of large crowds, that they cannot perceive the awful nature of the sacrifice? . . . Public executions should be abolished; and we hope that the next Legislature will take action upon the subject, so that while the ends of justice are met, public decency and morality may not be outraged!" 94

           A hanging was attended with almost as much ceremony as a public celebration and attracted even greater crowds. The gallows was a simple, though effective, arrangement. A beam was placed between two trees; and, after the adjustment of the rope, the cart on which the prisoner was standing was driven from under the beam. The spectacle of the victim struggling to keep his feet on the moving cart filled the crowd with a kind of delightful horror so that a different mode of execution was finally devised. The trap which thus came into use was held up by a rope which was passed over a beam and cut at the desired moment. The prisoner, seated on his coffin, was driven in a cart to the place of execution. He often was shrouded in a robe and accompanied to the gallows by ministers, likewise shrouded and very grave. Sometimes the prisoner exhorted the spectators 95

and nearly always he spoke a few last words. Instances are on record in which the prisoner was first conducted to church where a sermon was preached before a large audience which later accompanied the culprit to the gallows. 96

           On the day of a public hanging the village was usually crowded with eager spectators. Men, women, and children came in their



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best attire and made a holiday of the occasion. Drinking, fighting, and gambling were common. When Elijah W. Kimbrough and Negro Carey were executed in Raleigh in 1830, the town was filled with some 3,000 spectators. The Register described the events of the day:

           During the morning, every avenue leading to town, was literally blocked with human beings of both sexes, and of all colors, and ages. As the hour of noon approached the crowd became stationary near the Jail, where they encountered for about two hours the fervor of a meridian sun, waiting with intense anxiety to catch the first glimpse of the unfortunate pair. . . .

           Kimbrough was habited in a long white shroud which entirely concealed his person. His countenance was of an ashy hue and his step was far from firm. Carey had on a similar garment, except that it was black. His countenance expressed less emotion and his movements were more free and elastic. They were received at the Jail door by the City Guards who had been ordered out on the melancholy occasion, who opening to right and left admitted them, and then closed again, forming an oblong square. In this order they proceeded to the place of execution, followed by the immense multitude. . . .

           On arriving at the gallows, Mr. Hunt at the request of the prisoners, ascended the platform and addressed the spectators in an animated feeling and appropriate manner. His exhortation was listened to with marked earnestness, and we trust was received with benefit and advantage. A fervent prayer was also offered up to the throne of Grace, in which both prisoners seemed to unite with apparent sincerity. During these religious exercises, Kimbrough continued to weep bitterly; Carey appeared rather more composed.--But before Mr. Hunt left the platform, he stated that both criminals had desired him to reiterate to the world, their innocence of the crimes for which they suffered. . . .

           We feel it our duty to state the humiliating fact, that a large proportion of the crowd assembled on this occasion were females. 97

           The Raleigh Star "on reviewing the whole scene" was "impelled to the conviction, which seems to prevail very generally among our contemporaries, that public executions do not tend to promote either the peace and harmony of society, or morality among the people. . . . Many thefts were committed on our merchants, while their stores were crowded with buyers; counterfeiters seized upon it as a favorable time to pass their counterfeited money;



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and our streets at night presented a scene of disorder and drunkenness at once shocking to the feelings of humanity, and disgraceful to a civilized community." 98

           Not long after the opening of the century, protests began to appear in the public press and in the legislative halls against public executions as a violation of the finer feelings of humanity. As the year passed, this protest became louder and louder. In 1822 the Hillsborough Recorder declared that a hanging had become an occasion to usher criminals triumphantly into the presence of God 99

and some years later the Raleigh Register thought that the scaffold might be called "the stepladder to heaven." 100 In 1850 the Grand Jury of Mecklenburg County and more than a hundred others joined in a petition to the Legislature to abolish public executions asking that they be performed inside the jail in the presence of "a select number of persons." 101

           At the close of the period, the State was still hanging its criminals from scaffolds erected on spots convenient for the assembling of multitudes, but thirty years earlier the public stocks and whipping post in a few counties had been removed from the courthouse square to the jail yard. For instance, on July 11, 1831, on motion of Robert G. Twitty, the Rutherford County Court "granted him and the other citizens of Rutherfordton leave to take down and remove the public stocks and whipping post, and put them up in good order back of the Jail." 102

           It was not until late in the period that protests became numerous against public whippings, branding, and pillorying. On April 7, 1846, "Phi" wrote in the Raleigh Register, "We have, this day, witnessed the most humiliating scene that has ever been exhibited before us. Two white men were, by order of the court, led to the public whipping post, there stripped and fastened, and lashed with nine and thirty, until their skin was rough with whelks and red with blood. We have never beheld a scene more degrading to the noble sentiments that should be nurtured and cultivated in the breast of every freeman. It makes us almost hate ourselves, to think that we are of their kind--yea, their fellow-citizens." He thought that some might be reformed by being held up to scorn;



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"but few, very few, will thus tamely submit; they will soon be driven to recklessness and despair."

THE COUNTY JAILS

           Despite the squeamishness of the "enlightened public," the offenders themselves sometimes preferred summary punishment to imprisonment in the local jails. Throughout the period, the bad condition of some of the county jails was notorious. Archibald D. Murphey, petitioning Governor Miller in 1815 to pardon a young man under sentence for horse-stealing, wrote: "The Prisoner has been confined in Jail since early in the present Year, and that is perhaps the only Circumstance that I can urge for a Pardon. He has been confined in the most loathsome Prison in the State, and during great Part of the Time of his Imprisonment, he has been in Irons. His Sufferings have been as great as those of any Man who has been imprisoned." 103

           In 1806 a citizen called attention to the inadequacy of the county jails saying that there were not more than five or six in the State "capable of retaining prisoners." Great offenders need stay no longer than their friends from without chose to let them, "for it is from assistance without, that Jails are oftener broke, than from within. Thus you catch and perhaps convict the small fry; but your sharks or great offenders will always escape your net." 104

To prevent such "rescues," guards were always summoned to the jails in special cases. In 1845 there was no such guard about the Fayetteville jail and all prisoners except the debtors escaped at a "boring frolic" late in December. 105 A special guard policed the Greensboro jail in 1859 when the Reverend Daniel Worth was imprisoned there on charge of circulating seditious pamphlets. 106 The inadequacy of the jails was one of the reasons, too, for the severe punishment for breaking prison, already referred to, and the reason for keeping a prisoner in heavy irons.

           In 1818, when the Grand Jury of Wake County Superior Court investigated the condition of the jail at the direction of Chief Justice Taylor, it was usual for prisoners to be chained in a room amid human excrement without fire in winter or ventilation in summer. "Some provision should be made against the Cold of Winter,



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which is sometimes so excessive as to endanger the lives of the Prisoners thus confined there," reported the Grand Jury. 107 An act of 1822 required jailors to provide prisoners with blankets during the winter months, 108 but the generally unwholesome condition of jails continued.

           In 1822 a case, showing the condition of jails and the treatment of prisoners at this time, was brought to the attention of the Legislature. John Roberts of Carteret County had been appointed assistant pay master of the militia called out during the War of 1812. In 1816 charges of misconduct were preferred against him and he was imprisoned without bail awaiting trial. After six years these charges were still being prosecuted "and his person not only frequently imprisoned but even loaded with irons, and the most galling and unprovoked indignities, insults and contumely offered, and in some instances, a wantonly brutal, and unnecessary cruelty indulged in to him, by men assuming to have him in charge as a Prisoner." He was in 1822 confined in the Wake County jail "without clothing to shield him from the inclemency of the approaching winter, and without a bed . . . without fire . . . without other provisions . . . but what is supplied to the Negro prisoners." 109

The committee to whom this petition was referred, avoiding all opinion on the case, begged "leave simply to state, that the sufferings of the Petitioner have been really great; much greater it is believed than would have awaited him, upon an early trial and conviction of all he has been charged with. . . ." 110

           By 1848, when Dorothea Dix traveled over the State collecting information concerning the treatment of the insane, jail conditions had greatly improved. She reported a majority of the thirty-five county jails which she saw to be in good order. While she found only a few to be in excellent condition, she found only thirteen to be very defective, either from the poor construction of the building itself or from the uncleanliness of the "dungeons." The Surry County jail was "miserably dilapidated"; the Wilkes, "comfortless and old"; the Wayne, "an old dilapidated building"; the Duplin, "defective"; the Northampton, "noisome, damp, and cold." She found, in many instances, that the jailor, "as should always be arranged," resided "in one part of the building, having



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thereby the more immediate and efficient care of the prison." The jail of McDowell, "like most of the County prisons in this part of the State," was well built and well kept. The Burke 111 jail was "an exceedingly well built edifice, sufficiently lighted and aired, and well-kept"; the Orange jail, well built and in good order, "comparing well with the best kept Jails in the State." The Guilford jail was "isolated, but very well built and well kept: in addition to the dungeons and other strong rooms, was the unusual provision of a large chapel room for religious services." 112

           The improved condition of the county jails had been one of the humanitarian reforms of the period. The Caswell County jail, for instance, which had been in such "bad construction" in 1830 113

that it was said a prisoner would die if confined in it long, was in good order in 1848. 114 This reform had come about quietly and without much agitation, a result of the increasing sensitiveness to the sufferings of humanity which grew as the years advanced. But not even sixty-nine years of agitation could produce any profound change in the penal code of the State. It is true that the number of offenses punishable by death had been reduced from twenty-eight in 1817 to seventeen in 1855 and only one offense, perjury on a capital trial, was subject to cropping; but the reformers still insisted that punishments in North Carolina were horrible and disgusting. Three offenses might still be punished with branding; fifteen, by whipping on the bare back. The pillory still stood in the courthouse yard. Public executions were "calculated to blunt the finer feelings of humanity and to leave on the mind the impression of brutal cruelty and savage triumph." The slow and patient agitation which Governor Miller urged in 1815 might have gone on for several more decades had not war intervened and brought with it suddenly and dramatically the reforms for which the social leaders had been working for more than half a century. It did not require war, however, to culminate humanitarian reforms in behalf of the insane, the blind, and the deaf.

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