The Criminal Codes And Penal Institutions Of Colonial Pennsylvania

CRIMINAL CODES AND PENAL INSTITUTIONS. THE CRIMINAL CODES AND PENAL INSTITUTIONS OF COLONIAL PENNSYLVANIA. By Professor Harry E. Barnes, Clark University, Worcester, Massachusetts. I. The Criminal Codes. i. Introductory. In order to interpret intelligently the content and significance of the criminal codes of colonial Pennsylvania it is necessary to understand the general nature of criminal jurisprudence at the time, and the relation that the Pennsylvania codes bore to the prevailing trends in contemporary criminal law.1 Judged by presentday standards, the criminal laws of colonial times were extremely severe in the penalties they prescribed. A much larger number of capital crimes existed than are listed on the statute books of today. From ten to eighteen crimes, for which the death penalty was prescribed, was usual in the colonial period. The situation in England was, of course, far worse. There, at the close of the eighteenth century, some three hundred capital crimes were specified . Even more striking is the difference in penalties prescribed for crimes not capital. Instead of imprisonment some form of corporal punishment or fines was imposed. Imprisonment, as a method of punishment, was first permanently applied in this country in the period following 1789 in Pennsylvania. In general, it may be said that the criminal codes of colonial Pennsylvania passed through three major transformations. The English or Puritan system was first introduced in 1676. This was superseded by the mild and humane Quaker code of 1682, which was a new and revolutionary departure in criminal jurisprudence . On account of friction over the Quaker demand for 1I have discussed the general setting of colonial criminal jurisprudence in an article in the Journal of Criminal Law and Criminology, May, 1921. 4 BULLETIN OF FRIENDS' HISTORICAL SOCIETY. affirmation rather than oath-taking in court procedure, the English government in 1718 compelled the reëstablishment of the Puritan code, which remained in force until after the close of the Revolutionary War. 2. The Original Criminal Code of i6j6. On September 25, 1676, Governor Edmund Andros promulgated the laws of the Duke of York by an executive ordinance and thereby made them applicable to Pennsylvania.2 These laws had been compiled under the Duke's authority to be applied in the government of the territory he had conquered from the Dutch. They were described as having been "collected out of the several laws now in force in his Majesty's American Colonies and Plantations and digested into one volume for the public use of the territories in America under the government of his Royal Highness , James, Duke of York and Albany." They were first promulgated on March 1, 1664, at Hempstead, Long Island, and the criminal code contained therein is usually referred to as the " Hempstead Code." 3 The propinquity of Long Island to the New Haven colony, the intercommunication between the two colonies , and the resemblance between the wording as well as the content of the two codes would incline one to the belief that the Hempstead code was taken more or less directly from the codes of 1642 and 1650 enacted for the New Haven colony.4 The following portion of the laws embodied the list of capital crimes : i. If any person within this Government shall by direct, express, impious or presumptious ways, deny the true God and his attributes, he shall be put to death. 2.If any person shall commit any wilful and premeditated murder he shall be put to death. 3.If any person slayeth another with a sword or dagger who hath no weapon to defend himself; he shall be put to death. 4.If any man shall slay, or cause another to be slain by lying in wait privily for him or by poisoning or any other such wicked conspiracy; he shall be put to death. . . . 2 Charter and Laws, Historical Notes, pp. 455 f. 3 Ibid. 4 New Jersey Prison Inquiry Commission, 1918, Vol. II, pp. 27-28, 341-2. CRIMINAL CODES AND PENAL INSTITUTIONS.S 7.If any person forcibly stealeth or carrieth away any mankind; he shall be put to death. 8.If any man bear false witness maliciously and on purpose to take away a man's life, he shall be...