And this was in our own country, only a century and a half ago!
A Maryland statute enumerates among capital offences: manslaughter, malicious trespass, forgery, receiving stolen goods, and “stealth of one’s self”—which is the unlawful departure of a servant out of service or out of the colony without the consent of his master or mistress—“offender to suffer pains of death by hanging except the offender can read clerk-like, and then he shall lose his hand, and be burned in the hand or forehead with a hot iron, and forfeit his lands at the time of the offense committed.” This test of ability to read—“legit aut non legit?”—was manifestly a clause inserted to favor the clergy, and so woven into the tissue of mediæval law, that the Reformation had been powerless to unravel it.
It is noticeable that the economical planters wisely preferred those forms of punishment, which cost the State nothing but the services of the constable and the executioner, to the confinement in prison, which involved the support of the criminal at public expense. Prisons, of course, existed almost from the beginning. In the Maryland archives of 1676, I read that “Capt Quigly brought into this house the act for Building the State House and prisson at St Maries, and desires to know what manner of Windowes the house shall have.” It is at length decided accordingly by the Assembly “that the windowes are to bee of Wood with substanciall Iron barres and tht the wood of the frame of the Windowes be layd in Oyle.” For the safer guarding of the prisoners, it is also directed that the windows, which were to be only twenty by thirty inches in size, be protected by “Three Iron Barres upright, and two athwart.”
The prisons found little occupation as compared with the pillory and the whipping-post. The latter was the common corrector of drunkenness, which was a too frequent offence in those old days in the Cavalier Colonies, when the gentry sipped their madeira over the polished dining-table and the poor man mixed his toddy in his noggin of pewter or wood. All men drank, and most men drank too much. Wines played an important part in the colonial imports. A Virginia statute of 1645 fixed the price of canary and sherry at thirty pounds of tobacco, madeira and “Fyall” at twenty pounds, while aqua-vitæ and brandy ran up to forty. A few years later Master George Fletcher, his heirs and executors, were granted by statute, the sole right to brew in wooden vessels for fourteen years. Maryland laid a tax upon “Rhume, Perrie, Molasses, Sider, Quince Drink or Strong Beer Imported, each 5 lbs tob. per gal.”
The State, having made a handsome profit from the selling of all these wines and “hot waters,” straightway became very virtuous against the poor wight who took too much. He was sentenced to the joys of the whipping-post, or to be laid in the stocks, or to pay a fine; thus again making liquor pay a revenue to the State. We have an amusing description of what constitutes drunkenness, from a Colonial Dogberry of the seventeenth century, who sapiently observes: “Now, for to know a drunken man the better, the Scripture describes them to stagger and reel to and fro; And so, where the same legs which carry a man into the house can not bring him out again, it is a sufficient sign of drunkenness.” The difficulty in convicting these offenders with two pairs of legs, lay in the general sentiment of the community, that after all there was no great harm in taking a little too much of so good a thing as liquor.
The same public sentiment protected duelling, which was under the ban of the statute-books; but these old laws show the futility of attempting to legislate far in advance of public opinion. The law opposed it, but the prevailing sentiment sustained it. The number of duels fought at the South in colonial times has been grossly over-estimated, but they were fought; and the general feeling in regard to the practice was accurately expressed by Oglethorpe of Georgia, that typical Cavalier and true gentleman of the old school, who, when asked if he approved of duelling, made answer, “Of course a man must protect his honor.” This curious notion that a man’s honor was a vague but very sensitive article, worn about the person, and capable of being injured by any brawler who chanced to jostle against it at an “ordinary,” or any vagabond who wished to pick a quarrel with his betters on the road, was a relic of feudal days, when hostile factions met and fought at every corner; and the Colonial Cavalier held to it loyally, never asking himself why or wherefore. This theory, which makes the individual and not the State the avenger of insult and injury, found its logical climax in the methods adopted by Colonel Charles Lynch, a Virginia planter before the Revolution, and the author of a quick and simple form of law called by his name, and very popular still, though, to do him justice, it must be said that his followers have carried his principles further than their author intended. He never took life, but aimed simply to vindicate his own honor and that of his country by inflicting lashes on those who differed with him politically, and thought he did God service when he strung up suspected Tories, and forced them to shout “Liberty forever!”
Thus our study of the lawmaking and law-breaking records has brought us all the way from that House of Burgesses sitting at James Cittie in 1619—their hearts full of loyalty to his Majesty King James the First, and full of gratitude for the slender liberties he has seen fit to loan rather than grant them—to the brink of the Revolution, to parties of the Crown and of the people, to the hall in the Virginia Capitol where the Assembly is boiling with wrath and defiance against George the Third and his ministers, who have dared to insult the rights and liberties of a free people. It is a mighty transformation to have been brought about in a century and a half. The Southern Colonies did not give up their allegiance without a bitter struggle of reason against sentiment, a struggle which New England never knew; but at length the loyalty which had bowed down to fallen royalty at Breda and yielded Charles II. so early a recognition that he quartered the arms of Virginia with those of England, France, and Scotland, and spoke of it as the Old Dominion—at last, this generous, faithful, confiding loyalty had been outraged past endurance. But still the old traditions lingered. Gen. John Mason says: “So universal was the idea that it was treason and death to speak ill of the king, that I even now remember a scene in the garden at Springfield, when my father’s family were spending the day there on a certain Sunday, when I must have been very small. Several of the children having collected in the garden, after hearing in the house among our elders many complaints and distressing forebodings as to this oppressive course towards our country, we were talking the matter over in our own way, and I cursed the King, but immediately begged and obtained the promise of the others not to tell on me.”
Yet at this moment, when the young rebel was trembling in the garden for the effects of his awful temerity, America was already on the eve of the outbreak which severed her forever from the King and the Kingdom of Great Britain. The allegiance of the loyal colonies could not have fallen so suddenly, but for the long years of sapping and mining which had gone on silently, yet surely, doing their work.
From the time of the thrusting out of Sir John Harvey and his return, backed by the authority of Charles the First, there had been a war waged by proxy between king and people. The governors represented tyranny, and the Assembly opposed each encroachment. Eye to eye they stood, like wrestlers, neither side yielding a point without a struggle, yet both expressing equal loyalty and love for the King, and equal reverence for his authority. Virginia long preserved “an after-dinner allegiance” to the Crown even when she openly defied its policy. Virginians drank his Majesty’s health, wiped their lips, and imprecated his Majesty’s Navigation Acts. If their political creed bound them to the fiction that the King could do no wrong, they cherished no such delusion concerning his deputies.
When Sir William Berkeley, as despotic at heart as his Stuart master, undertook to play the tyrant in Virginia, the country blazed out into a rebellion, which died only with the death of Nathaniel Bacon, its leader. Bacon was a rebel, but a rebel of the type of Washington and Patrick Henry—one who believed in the motto which Jefferson engraved on his seal, “Rebellion against tyrants is obedience to God.” What vigor and eloquence are thrown into his proclamations! They belong to the brightest pages of American literature. Read but the opening of