Chapter XXV - Among Old Laws

History of Hampshire County West Virginia From Its Earliest Settlement to the Present
By Hu Maxwell and H. L. Swisher
Morgantown, West Virginia; A. Brown Boughner Printer; 1897

PART 2 County History
CHAPTER XXV - AMONG OLD LAWS
BY HU MAXWELL
Pages 302-312

Hampshire being the oldest county in the state of West Virginia, has been governed by every state law of Virginia in force between the years of 1754 and 1861, and by every West Virginia law from 1863 until the present. A history of the county would be incomplete without a reference to some of these old laws. They are not only worthy of consideration because they were once the rule of the land, but they should be studied to show the progress of society during the past century. There are persons who speak of the good old times as though everything were better than now; and who speak of the people of a hundred years ago as if they were greater, purer, nobler than the men of today, and as if when they died, wisdom died with them. The historian knows that this belief is erroneous. Not only are there men now living who are as upright, wise and patriotic as any who ever lived, but society, in all its branches and departments, has grown better. Only the pessimist refuses to see that the human race is climbing to a higher level, and not retrograding.

To bring this truth nearer home, to the people of Hampshire county, let a retrospective view of the customs and laws prevailing here a century ago be taken. That the people of Virginia, and those of Hampshire., in common with the rest, tolerated the laws long after the close of the Revolutionary war, is proof that the laws were not obnoxious to a majority of the people; otherwise they would have changed them. Before proceeding to a statement of the acts of the Virginia legislature, let it be remembered that at that time Washington was president of the United States, and the great men of Virginia, at the close of the, last century and the beginning of this, were in their prime. They were responsible for the bad laws, as well as for the good; if not directly, at least indirectly, for they were looked upon as leaders. Patrick Henry, who had exclaimed, "give me liberty or give me death," was yet living and practicing law; John Randolph of Roanoke was entering his career of greatness; James Monroe, soon to be president of the United States, was a leader in Virginia; George Mason, the author of the Bill of Rights, had not yet lost his influence; James Madison, also to be president of the United States, was a leader among the Virginians; William Wirt, one of Virginia's greatest lawyers, was in his prime; Edmund Randolph, governor of Virginia, was in politics; John Marshall, the famous chief justice, was practicing in the courts; Thomas Jefferson, the author of the Declaration of Independence, was in the height of power; and the list might be extended much further. Yet, with all of these truly great men in power in Virginia, the legislature of that state passed such laws as will be found below:

On December 26, 1792, an act was passed for the purpose of suppressing vice, and provided that for swearing, cursing or being drunk the line should be eighty-three cents for each offense, and if not paid, the offender should have ten lashes on the bare back. For working on Sunday the fine was one dollar and sixty-seven cents. For stealing a hogshead or cask of tobacco found lying by the public highway, the punishment was death.

On December 19, 1792, an act was passed by the Virginia legislature providing that any person found guilty of forgery must be put to death; and the same punishment was provided for those who erased, defaced or changed the inspector's stamp on flour or hemp. No less severe was the punishment for those who stole land warrants. But for the man who made, passed, or had in his possession counterfeit money, knowing it to be such, the penalty of death was not enough. He was not only to be put to death, but was forbidden the attendance of a minister, and must go to execution "in the blossom of his sin." The design of the law-makers evidently was to add to his punishment not only in this life, but, if possible, send him to eternal punishment after death. It is not in the province or power of the writers of this history to ascertain whether the Virginia assembly ever succeeded in killing a man and sending him to hades because he had a counterfeit dime in his pocket; but the probability is that the powers of the law-makers ceased when they had hanged their man, and a more just and righteous tribunal then took charge of his case.

It is evident that the early Virginia law-makers laid great stress on the idea of clergy to attend the condemned man. If they wanted to inflict extreme punishment they put the finishing touches on it by denying the privilege of clergy. On November 27, 1789, an act was passed by the legislature segregating crimes into two classes, one of which was designated as "clergyable," and the other as "unclergyable." It was provided that the unclergyable crimes were murder in the first degree, burglary, arson, the burning of a court house or prison, the burning of a clerk's office, feloneously stealing from a church or meeting-house, robbing a house in presence of its occupants, breaking into and robbing a dwelling house by day, after having put its owner in fear. For all of these offenses the penalty was death. A provision was made in some cases for clergy; but, lest the convicted man's punishment might not thereby be too much lightened, it was stipulated that he must have his hand burned before he was hanged. The same law further provided that, although a man's crime might not be unclergyable, yet if he received the benefit of clergy, and it was subsequently ascertained that he had formerly committed an unclergyable offense, he must then be put to death without further benefit of clergy. In this law it was expressly provided that there should be no mitigation of punishment in case of women.

By an act of December 26, 1792, it was provided that the man who apprehended a runaway servant and put him in jail was to receive one dollar and forty-seven cents, and mileage, to be paid by the owner. This law was, no doubt, intended to apply chiefly to slaves rather than to white servants. If the runaway remained two months in jail unclaimed, the sheriff must advertise him in the "Virginia Gazette," and after putting an iron collar on his neck, marked with the letter "F," hire him out, and from his wages pay the costs. After one year, if still unclaimed, he was to be sold. The money, after the charges were paid, was to be given to the former owner if he ever proved his claim, and if he did not do so, it belonged to the state.

The law-makers believed in discouraging gossip and tattling, as well as burning a condemned man in the hand prior to his execution. A law passed by the Virginia legislature, December 27, 1792, was in the following language: "Whereas, many idle and busy-headed people do forge and divulge false rumors and reports, be it resolved by the general assembly, that what person or persons soever shall forge or divulge any such false report, tending to the trouble of the country, he shall be by the next justice of the peace sent for and bound over to the next county court, where, if he produce not his author, he shall be fined forty dollars, or less if the court sees fit to lessen it, and besides give bond for his good behavior, if it appear to the court that he did maliciously publish or invent it."

There was a studied effort on the part of the legislators to discourage hog stealing. It is not apparent why it should be a worse crime to steal a hog than to steal a cow; or why the purloining of a pig should outrank in criminality the taking of a calf; or why it should be a greater offense to appropriate a neighbor's shoat than his sheep. But the early law-makers in Virginia seem to have so considered, and they provided a law for the special benefit of the hog thief. This law, passed by the legislature December 8, 1792, declared that "any person, not a slave, who shall steal a hog, shoat or pig," should receive thirty-five lashes on the bare back; or if he preferred to do so, he might escape the lashing by paying a fine of thirty dollars; but whether he paid the fine or submitted to the stripes, he still must pay eight dollars to the owner for each hog stolen by him. This much of the law is comparatively mild, but it was for the first offense only. As the thief advanced in crime the law's severity increased. For the second offense in hog-stealing the law provided that the person convicted, if not a slave, should stand two hours in a pillory, on a public court day, at the court house, and have both ears nailed to the pillory, and at the end of two hours, should have his ears cut loose from the nails. It was expressly provided that no exception should be made in the case of women. If the hog thief still persisted in his unlawful business and transgressed the law a third time, he was effectually cured of his desire for other people's hogs by being put the death.

The slave had a still more severe punishment for stealing hogs. For the first offense he received "thirty-nine lashes on the bare back, well laid on, at the public whipping post." For the second offense he was nailed by the ears to a post, and after two hours of torture, had his ears cut off. For the third offense he was put to death. The law provided that if a negro or Indian were put on the stand as a witness against a person accused of stealing hogs, and did not tell the truth, he should be whipped, nailed to a post, his ears cut, and if he still testified falsely, he paid the penalty with his life. After a hog had been stolen and killed, the relentless law still followed it to try to discover if some one else might not be punished. If a person bought, or received into his possession, a hog from which the ears had been removed, he was adjudged guilty of hog stealing, unless he could prove that the hog was his own property. There was also a law forbidding any one from purchasing pork of Indians, unless the ears went with the pork. There would be some inconvenience in retailing pork under this restriction, as it would require a skillful butcher to so cut up a hog that each ham, shoulder, side and the sausage should retain the ears.

There can be no question that hog raising was profitable in Hampshire under this law, and also before the law was enacted. Indeed, it is said that the name Hampshire was given the county because of its excellent hogs. According to this story, Lord Fairfax was once in Winchester when a drove of very fine hogs passed along the street on their way to market. He asked where they came from, and upon being told that they were raised on the South branch of the Potomac, he remarked that when a new county should be formed in that part of the country it should be called Hampshire, after a place of that name in England which was famous for its fine hogs.

If stealing hogs was a crime almost too heinous to be adequately punished in this world, horse stealing was so much worse that the law-makers of Virginia would not undertake to provide a law to reach the case. They, therefore, enacted a law, December 10, 1792, that the convicted horse thief must be put to death; and, in order that he should certainly reach eternal punishment beyond death, he was forbidden to have spiritual advice. The language of the law is that the horse thief shall be "utterly excluded."

A law of unnecessary severity was passed December 22, 1792, against negroes who should undertake to cure the sick. It is reasonable and right that the law should carefully guard the people against harm from those who ignorantly practice medicine; but to us of the present day it appears that a less savage law would have answered the purpose. It was provided that any negro who prepared, exhibited, or administered medicine should be put to death without benefit of clergy. It was provided, however, that a negro might, with the knowledge and consent of his master, have medicine in his possession.

The law of Virginia required every county to provide a court house, jail, pillory, whipping post, stocks and a ducking stool. But the ducking stool might be dispensed with, if the comity court saw fit to do so. The whipping post was the last of these relics of barbarism to be removed from Hampshire county. Many persons now living can remember when the whipping post stood in the rear of the old court house, a grim reminder of the severe laws gone by. It was a large post, octagon in shape, and had a roof over it. The culprit was tied by his wrists and drawn close against it, and the whip was applied.

So far as can be ascertained from an examination of county records, mutilated and destroyed by time and war, the last public and legalized burning of a convicted man in Hampshire county occurred in July, 1823, in the old court house. A negro slave, named Simon, the property of David Collins, was tried on a charge of assault. The record does not show that he had a jury. The court found him guilty and ordered the sheriff to burn him on the hand and give him one hundred lashes, chain him, and keep him on "coarse and low diet." The minutes of the court state that the sheriff "immediately burned him in the hand in the presence of the court," and gave him then and there twenty-five lashes. The remaining seventy-five were reserved for future days. The judges who were present on that occasion were John McDonald, Christopher Heiskell, Vause Fox, John Brady and W. C. Wodrow. The sheriff who executed the order of the court was Francis White, and the clerk was John B. White.

It is but justice to the law-makers of Virginia, and the people at that time, to state that nearly all of these severe laws came from England, or were enacted in the colony of Virginia many years before the Revolutionary war. Some of them date back to the time of Cromwell, or even earlier. Although the people of Virginia took the lead in the movement for greater liberty, both mental and physical, they could not, all at once, cut loose from the wrecks of past tyranny. They advanced rapidly along some lines, but slowly along others. They found those old laws on the statute books, and re-enacted them, and suffered them to exist for a generation or more. But we should not believe that such men as Patrick Henry, Edmund Randolph, Thomas Jefferson, George Washington, and the other statesmen and patriots of that time believed that a man should be nailed to a post for stealing a pig", or that the crime of stealing a hymn book from a church should be punished with death without benefit of clergy.

A law passed near the close of the last century, and still in force in 1819, provided sheriff's fees on a number of items, among which were the following: For making an arrest, sixty-three cents; for pillorying a criminal, fifty- two cents; for putting a criminal in the stocks, twenty-one cents; for ducking a criminal in pursuance of an order of court, forty-two cents; for putting a criminal in prison, forty-two cents; for hanging a criminal, live dollars and twenty-five cents; for whipping a servant, by order of court, to be paid by the master and repaid to him by the servant, forty-two cents; for whipping a free person, by order of court, to be paid by the person who received the whipping, forty-two cents; for whipping a slave, by order of the court, to be paid by the county, forty-two cents; for selling a servant at public outcry, forty-two cents; for keeping and providing for a debtor in jail, each day, twenty- one cents.

It was more expensive to be whipped or pilloried by the sheriff than by a constable, although there is no evidence that the sheriff did the work any more effectively. Since the person who received the punishment usually paid the fees of the officer who performed the service, it is probable that such person preferred being whipped or nailed to a post by the constable because it was less expensive. Some of the constable's fees are shown below: for putting: a condemned man in the stocks, twenty-one cents; for whipping a servant, twenty-one cents; for whipping a slave, to be paid by the master, twenty-one cents; for removing a person likely to become a charge on the county, per mile, four cents.

It would appear from this that it was customary to send persons out of the county who were likely to become paupers; but, of course, the county to which they were sent must take charge of them, or send them on to the next county. Most likely the pauper was hustled on from county to county, it being found cheaper to move him than to maintain him. Not much can be said in praise of a custom which sent paupers to some one else to be cared for; but, at that time, indigents were not numerous. Although each county might claim and exercise the right of shoving its paupers into another county to be cared for, yet when it came into possession of an indigent in this manner from an adjoining county, it considered it hard luck. There is a letter preserved in the old county records giving an insight into the feelings of disgust with which one county court received a pauper from another. The letter contains a tine vein of sarcasm, and is worth quoting:

"Winchester, County of Frederick,     
"State of Virginia, Aug. 4, 1794.     

"To the Honorable Court of Hampshire County.
"State of Virginia, Gentlemen:

"Greeting: — The court of Frederick beg leave to inform the court of Hampshire that we have just received a visit from one Simon Pelman, a pauper, who informs us that he was sent to us by the court of Hampshire. The court of Frederick beg leave to inquire to what may we attribute the honor of this visit from Mr. Pelman, late of your county? This court were not aware that they had merited the distinction of being thus waited upon by your envoy extraordinary. But, notwithstanding this court were taken by surprise, they find themselves in a position to return the honor by returning Mr. Pelman to Hampshire, by the road which he came; with the suggestion that when it again shall please you to accredit to us an ambassador of Mr. Pelman's rank, you will so far observe the rules of diplomacy as to inform us of your purpose, that we may not again be taken by surprise, but may be prepared to meet your envoy on our frontiers and receive him in a manner becoming his rank and the dignity of the court which sent him.

"Court of Frederick County."      

Within the past century several important changes have taken place in the laws under which Hampshire county has been governed. An act of assembly, passed November 29, 1792, provided that in cases where a person is suspected of having committed a murder, and the coroner's jury recommend that he be held for trial, and he eludes arrest, the coroner must seize his house and property and hold them until he surrenders himself or is arrested. Where a defendant was found guilty the costs of the prosecution was collected by sale of his property, if he had any property; but he might pay cost and thus save his property. No constable, miller, surveyor of roads or hotel-keeper was eligible to serve on a grand jury. A law passed January 16, 1801, provided a fine of five dollars as a penalty for killing deer between January 1 and August 1 of each year. A law enacted January 26, 1814, provided that sheep-killing dogs should be killed. If the owner prevented the execution of the law upon the dog he was subject to a fine of two dollars for each day in which he saved the life of the dog. The bounty on wolves was made six dollars for each scalp, by a law passed February 9, 1819. But the bounty was not always the same, nor was it uniform throughout the counties of Virginia. In 1828 George O. King and Isaac Davidson were each paid twenty dollars for the scalps of two old wolves which they had killed in Hampshire county. There were six wolves killed in the county that year. A law of January 16, 1802, provided a fine of thirty dollars for setting the woods on fire; and a law of January 4, 1805, punished by a fine of ten dollars the catching of fish in a seine between May 15 and August 15.

There was a severe law passed by the Virginia legislature February 22, 1819, for the benefit of tavern-keepers. It provided a fine of thirty dollars for each offense, to be levied against any person, not a licensed tavern-keeper, who should take pay from a traveler for entertainment given. Not only was this law in force in and near towns, but also within eight hundred yards of any public road. There was a law enacted by the assembly of Virginia December 24, 1796, which was intended to favor the poor people. It is in marked contrast with many of the laws of that time, for they were generally not made to benefit the poor. The law had for its object the aiding of persons of small means in reaching justice through the courts. A man who had no money had it in his power to prosecute a suit against a rich man. He could select the court in which to have his case tried; the court furnished him an attorney free; he was charged nothing for his subpoenas and other writs; and he was not charged with costs in case he lost his suit.

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