ciple and imprisonment was but sparingly used. Death in various forms was prescribed; quartering, the pillory, the rack, decapitation, the gibbet, flogging for the least important offense, and all manner of bodily mutilation and death following torture for the slightest offense.

Even after the American Revolution but little progress was discernible. Though, indeed, the Northwest Ordinance of 1787 prohibited slavery, guaranteed religious freedom, and decreed that schools and education should forever be encouraged, the criminal laws and ordinances of the territory authorized the erection of whipping posts in each county, made flogging both for men and women the customary penalty, and provided for death in cases of treason, murder, arson, horse stealing upon a second conviction, and rape.

A territorial act of September 17, 1807, provided that "In all cases of penalties where free persons are punishable by fines, servants shall be punished by whipping at the rate of twenty lashes for each eight dollars," and Section 3 of an equally inhuman statute of the same year provided that vagrants who could not (not would not). obtain an employer who would furnish them with food and clothes, should receive a penalty of not exceeding thirty-nine lashes on the bare back.

In speaking of the severity of the penalty of flogging, Dr. Samuel Willard in an address before the State Historical Society of Illinois on January 24, 1906, said:

"There was then no penitentiary in the state, hence other penalties had to take the place of confinement. Near the courthouse on the public square (in Carrollton, Illinois) there was set a strong post, an unhewn log, ten feet high, with a cross-piece near the top. I saw a man brought from the jail by the sheriff and a constable, to be whipped thirty lashes for the theft of a horse. He was stripped naked to the hips, his hands were tied and the rope was carried to the cross-piece and drawn as tight as could be without taking his feet from the ground. Then Sheriff Fry took that terrible instrument of punishment and torture, a rawhide. It was hard, ridgy and rough, but flexible as a switch, three quarters of a yard long. The Sheriff began laying strokes on the culprit's back, beginning near his neck and going regularly down one side of his backbone, former Sheriff Young counting the strokes aloud. Each stroke made a red blood-blister. When fifteen blows had been counted, the officer paused, and someone ran to the poor wretch with a tumbler of whiskey, then the other side of the man received like treatment. Then the man's shirt was replaced and he was led away to the jail. One of the bystanders said: 'O Lord, he isn't as bad cut up as C. H. was when L. M. flogged him three or four years ago.' Boy as I was, I did not know what a dreadful infliction it was. The whipping-post remained there two or three years but I never heard of any further use of it."

CHAPTER V

THE REACTION AGAINST EXCESSIVE SEVERITY; THE ESTABLISHMENT OF THE FIRST STATE PENITENTIARY AT ALTON; AND THE MORE HUMAN

CRIMINAL CODE OF 1833

So far we have considered the earlier history of Illinois and a criminal law which was marked for its severity. Between 1827 and 1833, however, not only does there seem to have been a reaction on the part of the neighborly and (in all times and in all countries) fundamentally sympathetic and humane frontiersmen, but the thought of the outside world seems to have been felt, the result being a marked change in the legislative attitude toward crime and toward the criminal. Even before flogging as a punishment for crime was forbidden by law, it is quite clear that in many instances the courts refused to impose the penalty and when imposed the officers of the law refused to inflict it or mitigated its severity as much as possible.

To

By far the most prominent exponent of the new penology was John Reynolds, Governor of the State of Illinois from 1830 to 1838, at one time a member of Congress, and characterized by John J. Thompson in an article on page 48 of Volume 6 of the Illinois Law Quarterly as "the rough diamond of early Illinois statesmen." Reynolds, at any rate, credit is due for the passage of the Act of February 18, 1837, which provided for the establishment of the first state penitentiary at Alton, and for the passage of the more humane Criminal Code of 1833. Prior to this time the only prisons in Illinois were county jails and even these were not to be found in all of the counties. The erection of the penitentiary made possible longer terms of incarceration,' and the abolition of flogging and other barbarous punishments.

1 Harry Elmer Barnes on page 160 of his work, Repression of Crime, says: "The real beginning of the systematic introduction of imprisonment as the prevailing method of punishment of the delinquent came in the last quarter of the eighteenth century, being prepared by the moral revival led by Wesley and Whitfield, the humanitarianism of the English and American Quakers, and the progress of rational and enlightened jurisprudence in the works of Montesquieu, Beccaria, Romilly and Bentham. Between 1773 and 1791 John Howard not only did much to improve the condition of imprisoned debtors in England, but also made a very thorough study of similar conditions on the continent of Europe and brought back to England a vast amount of interesting penological information which served to interest and instruct his contemporaries. Twenty years after Howard's death a Quaker humanitarian, Elizabeth Gurney Fry, began her work among the horribly treated women prisoners in London. In this same generation following 1775 there were distinct advances in certain local English jails which definitely anticipated the modern prison system. Little could be done in England, however, to produce a prison system until between 1815 and 1835, Romilly, Mackintosh, Peel and Buxton had succeeded in having repealed the barbarous English criminal laws and in securing a substitution of imprisonment for corporal punishment or banishment as the most approved method of dealing with the criminal. In the period of the

The Criminal Code of 1833 abolished flogging as a punishment for crime and lengthened the terms of imprisonment. Murderers, as before, were punished by death as were also those who were convicted of the crime of treason. Rape was punished by confinement in the penitentiary for a term of not less than one year and which might extend to life. Arson of any dwelling or mercantile or public building was punishable by a term of imprisonment for not less than one nor more than ten years, and arson of other buildings for a term not exceeding two years and a fine not exceeding one hundred dollars. The penalty imposed for burglary in the night time was a term of not less than one nor more than ten years; for robbery, confinement in the penitentiary for not less than one nor more than fourteen years: larceny, confinement for not less than one nor more than ten years; for embezzlement by a public servant, a term of not less than one year nor more than ten years; for counterfeiting, confinement for not less than one nor more than fourteen years; for bigamy, a fine not exceeding one thousand dollars and imprisonment in the penitentiary not exceeding two years; for adultery, a fine of not more than five hundred dollars, or imprisonment of not more than one year; and for fornication, a fine not exceeding two hundred dollars and imprisonment not exceeding six months. Persons under the age of eighteen years were to be confined in the county jails except in cases of robbery, burglary or arson, for the perpetration of which crimes they were sent to the penitentiary.

PUNISHMENT, NOT REFORMATION, STILL THE DOMINANT AIM

OF THE CRIMINAL LAW

The Act of July 1, 1833, does not seem to have contemplated any system of paroles or of probation, or the indeterminate sentence. Though the very term penitentiary presupposes repentance and reformation, the reformation of the prisoner is not specifically dwelt upon and humanity appears to have been the only incentive of the statute. This desire for humanity is emphasized by another Act of February 7, 1833, which provided for the appointment of three

first Revolution, France also made certain marked advances towards the substitution of imprisonment for corporal punishment. Yet, in spite of these European advances which have been mentioned, as well as certain earlier or contemporary progress being made in the Papal prison at Rome and that of Ghent in Belgium, the real center from which the modern prison and its accompanying system of discipline and administration has spread was the system introduced in Philadelphia by the Quakers following 1776.

"In 1776 the Philadelphia Friends formed an association, entitled the Philadelphia Society for Assisting Distressed Prisoners, for the purpose of relieving the conditions of the debtors and accused persons confined in the jail at Third and High Streets. After the Revolutionary War this society was reorganized in the German School House at Philadelphia, as the Philadelphia Society for Alleviating the Miseries of Public Prisons. Between 1786 and 1795 the Society had secured the abolition of the barbarous criminal laws of Pennsylvania and the substitution of imprisonment for corporal punishment in the case of all crimes except murder. This necessitated the provision of a system of penal institutions which would make the confinement of the offender possible, and there was thus produced the modern prison. The Quakers derived their doctrines and reform proposals in part from the earlier precedents of Penn and his associates and in part from correspondence with Howard and other contemporary European reformers."

inspectors whose duty it was to examine "into the conduct of the penitentiary, its discipline and police, and the punishment and employment of the prisoners." This was a humane document and marked a decided advance in the penology of the State of Illinois.

There was, however, in this legislation a concession to the old ideas of prison discipline, since, by an Act of February 15, 1831, almost autocratic powers were given to the warden, among which was the power "to suppress all arisings, rebellions or other refractory conduct of the said convicts, and for that purpose they and each of them (the warden and his officers) shall have power to use all necessary force and violence toward such convicts to accomplish the same" and although, by the prior Act of January 6, 1827, solitary confinement for a term not exceeding thirty days was mentioned as a proper punishment, flogging as a means of suppressing rebellions and refractory conduct was, no doubt, still continued even if not actually authorized. Flogging, however, was not authorized by the Legislature mentioned as a punishment for the original crime.

REASONS FOR THE ACT OF 1833

The reason for this crusade by Governor Reynolds is given on page 172 of his book entitled My Own Times, published by the Chicago Historical Society in 1879, printed by the Fergus Printing Co. of Chicago. He says:

"I had reflected on the subject of punishment of criminals, and had reached the conclusion that the criminal law should be changed, and that the ancient barbarous system of whipping, cropping, and branding for crimes should be abolished and the penitentiary substituted. This ancient practice had been in operation for ages, and it was difficult to change it. There is a kind of reverence and respect for old customs that is troublesome to overcome. But the age required the old barbarous systems of the pillory, the whipping-post, and the gallows to be cast away, and a more Christian and enlightened mode of punishment adopted.

"Our constitution was the first in the Union that abolished imprisonment for debt, and it contains this humane provision: 'the object of punishment is reformation and not for extermination' which shows the spirit of the age. On the same principle the penitentiary system was established in Illinois to reform the convicts and not to exterminate them.

"I was, when I was Governor of the State, on my earnest solicitation, appointed by law one of the directors, and the power was conferred on me as Governor, by law, to appoint four other directors to build the penitentiary and to establish the system throughout-our labors succeeded admirably well and the plan and management of the whole concern is, in a manner, adapted to the improved and enlightened age of the country. I have never performed a public service that has afforded me more satisfaction than my efforts to aid in establishing the penitentiary, and to adapt the laws to the system. It is too brutal and barbarous to whip, crop and brand a man in the pillory if it can be avoided. But one single other amendment do our laws require, and that is to abolish capital punishment and confine the convicts for murder, during life, in a dungeon. Intelligence and the age of progress will in a few years carry out the system, and then we will prevent an ignorant and debased rabble from rushing in thousands to see a human being hung."

CHAPTER VI

THE FARMING OUT OF CONVICTS

Although Governor Reynolds was able and desirous to accomplish much in regard to the humane treatment of the prisoner, he does not seem to have contemplated the parole or even reformation, except only as reformation might be accomplished by means of punishment.

Flogging was abolished as a part of the original sentence, but it does not seem to have been abolished as a means of prison discipline, and the contract-labor system which was authorized by legislation during the incumbency of Governor Reynolds and which was maintained in the penitentiary for a long time thereafter was totally opposed to any system of personal reform.

Even after the establishment of the penitentiary the farming out of the convicts was authorized. An Act of February 9, 1837, permitted the inspectors of the penitentiary "to farm out the convicts to some individual or some individuals as they, in their judgment, may best advance the interests of the State," and this legislation was followed in the same session by an Act of March 1, 1845, which provided

"for the leasing of the penitentiary at Alton and the labor of the convicts now and hereafter to be confined herein, to one Samuel A. Buckmaster, who is to apply the labor of one-fourth of the convicts to the manufacturing of hempen articles within one year from the commencement of the lease, and thereafter the labor of the majority of the convicts for the same purpose. In consideration of this lease, said Buckmaster is to pay to the Treasury of the State a bonus of $5,100 and is also to pay the usual fees of the inspectors, and to furnish at his own expense, the necessary guards and food, clothing, beds and bedding, and necessary bills of physicians for the convicts."

This lease or contract with the warden, Samuel A. Buckmaster, was extended for five years on the same terms and conditions as before by an Act of January 31, 1851, and, by an Act of February 16, 1857, a new lease of the penitentiary and its inmates was made to S. A. Casey upon the same terms and conditions as the former lease to Samuel A. Buckmaster, and it was not until 1871 that the policy of making the warden both a jailer and an employer was discontinued.

A STATE OF SLAVERY

A more complete condition of slavery could not well be imagined. The penitentiary was a factory under an almost autocratic government by the warden who, at the same time, was the master of the works