Oddities in Early Illinois Laws

Typed and Donated by ©Sue Reed
©Illinois Trails History and Genealogy
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Oddities in Early Illinois Laws, Prepared for the Annual Meeting of the Illinois State Illinois State Historical Society 1916

By "oddities" as used in the subject of this paper, is meant the unusual, the striking.  and the odd laws to which reference is made are such as would arrest one's attention and cause more or less surprise that such laws were enacted at the time and under the circumstances.

In organized society, legislation is, however, the essence of history. To understand the history of a period, one must know its laws, and if one be thoroughly conversant with the laws of a nation or state, he has taken the most important step toward the mastery of its history.

Naturally, this paper deals chiefly with written laws since to follow the varying decisions of courts haphazardly constituted as they were in the very early days would give more or less importance to individual notions.  There were some customs and rulings, however, amongst the very earliest peoples, even including the Indians, which seem to have had sufficient vogue to virtually become laws.

INDIAN CUSTOMS

It was the custom amongst many tribes of Indians, apparently for the purpose of stimulating energy and activity, to dedicate little male papooses to one or the other of two colors; either black or white, and as the little Indians grew up, they were counted amongst the number of their corresponding color and cooperated with them in all games and contest.

Another odd custom is found in the form of punishment  meted out the false or supposedly false consorts.  Upon the testimony of an Indian brave that his squaw was false to him, such derelict was punished by having her nose cut off.

FRENCH CUSTOMS

Due to the fact,perhaps, that money was a very scare article amongst the French in early Illinois, it was quite common to adjudge payment in kind; that is, if one member of the community borrowed a horse from another and through some misfortune, such as an Indian attack, the horse were killed or stolen, upon action brought, the court would decree the return of another horse without attempting too nicely to balance values.

Many instances are found in the French times where a party plaintiff in a demand was given the growing crops of the defendant out of which to make his demand.  It was also permissible, it seems, to adjudge the services of a defendant in payment of a claim against him.


The declaration of principles and many of the laws under the Virginia regime were odd in the sense that they were surprisingly advanced.  These and the public and private communications and instructions to George Rogers Clark and John Todd by the Assembly of virginia and Governors Patrick Henry and Thomas Jefferson were models of governmental solicitude.

The declaration of principles adopted by the representatives of the "Good People of Virginia" on June 12, 1776, prior to the Declaration of Independence asserted:

THAT ALL MEN ARE BY NATURE EQUALLY FREE AND INDEPENDENT.

THAT THEY HAVE CERTAIN RIGHTS; VIZ, THE RIGHT TO THE ENJOYMENT OF LIFE AND LIBERTY WITH THE MEANS OF ACQUIRING AND POSSESSING PROPERTY AND PURSUING AND OBTAINING HAPPINESS AND SAFETY ,OF WHICH THEY CANNOT BY ANY COMPACT, UPON ENTERING INTO A STATE OF SOCIETY, DEPRIVE OR DIVEST THEIR POSTERITY.

THAT ALL POWER IS VESTED IN AND DERIVED FROM THE PEOPLE

THAT MAGISTRATES ARE THE PEOPLE'S TRUSTEES AND SERVANTS AND AT ALL TIMES AMENABLE TO THE PEOPLE.

THAT THAT FORM OF GOVERNMENT IS BEST WHICH IS CAPABLE OF PRODUCING THE GREATEST DEGREE OF HAPPINESS AND SAFETY AND IS MOST EFFECTUALLY SECURED AGAINST THE DANGER OF MAL-ADMINISTRATION.

THAT ELECTIONS SHOULD BE FREE AND THAT ALL MEN HAVING SUFFICIENT EVIDENCE OF PERMANENT COMMON INTEREST WITH AND ATTACHMENT TO THE COMMUNITY HAVE THE RIGHT OF SUFFRAGE.

THAT NO ONE CAN BE TAXED OR  DEPRIVED OF HIS PROPERTY FOR PUBLIC USES WITHOUT HIS CONSENT OR THAT OF HIS REPRESENTATIVES ELECTED BY HIM, NOR BOUNDEN BY ANY LAW TO WHICH HE SHALL NOT, IN LIKE MANNER, HAVE ASSENTED FOR THE PUBLIC GOOD.

THAT ALL POWER OF SUSPENDING LAWS BY ANY AUTHORITY WITHOUT THE CONSENT OF THE REPRESENTATIVES OF THE PEOPLE IS INJURIOUS AND OUGHT NOT TO BE EXERCISED.

THAT IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED HAS THE RIGHT TO DEMAND THE CAUSE AND NATURE OF HIS ACCUSATION, TO BE CONFRONTED WITH THE ACCUSERS AND WITNESSES, TO CALL FOR EVIDENCE IN HIS FAVOR, TO A SPEEDY TRIAL BY AN IMPARTIAL JURY OF HIS VICINAGE WITHOUT WHOSE UNANIMOUS CONSENT HE CANNOT BE FOUND GUILTY.

THAT NO MAN CAN BE COMPELLED TO GIVE EVIDENCE AGAINST HIMSELF OR DEPRIVED OF HIS LIBERTY EXCEPT BY THE LAW OF THE LAND OR THE JUDGMENT OF HIS PEERS.

EXCESSIVE BAIL OUGHT NOT TO BE REQUIRED NOR EXCESSIVE FINES IMPOSED NOR CRUEL AND UNUSUAL PUNISHMENT INFLICTED.

THAT GENERAL WARRANTS ARE GRIEVOUS AND OPPRESSIVE AND OUGHT NOT TO BE GRANTED.

THAT TRIAL BY JURY IS PREFERABLE TO ANY OTHER AND OUGHT TO BE HELD SACREDLY.

THAT THE FREEDOM OF THE PRESS IS ONE OF THE GREAT BULWARKS OF LIBERTY AND CAN NEVER BE RESTRAINED BUT BY DESPOTIC GOVERNMENTS.

THAT THE BLESSINGS OF LIBERTY CAN BE PRESERVED TO ANY PEOPLE ONLY BY A FIRM ADHERENCE TO JUSTICE, MODERATION, TEMPERANCE, FRUGALITY AND VIRTUE AND BY FREQUENT RECURRENCE TO FUNDAMENTAL PRINCIPLES.

THAT RELIGION OR THE DUTY WHICH WE OWE TO OUT CREATOR AND THE MANNER OF DISCHARGING IT  CAN BE DIRECTED BY ONLY REASON AND CONVICTION, NOT BY FORCE OR VIOLENCE, AND THEREFORE, ALL MEN ARE EQUALLY ENTITLED TO THE FREE EXERCISE OF RELIGION ACCORDING THE DICTATES OF CONSCIENCE, AND THAT IT IS THE MUTUAL DUTY OF ALL TO PRACTICE CHRISTIAN FORBEARANCE, LOVE AND CHARITY TOWARDS EACH OTHER."

MORE DEMOCRATIC THAN THE ORDINANCE OF 1787

Contrasting this declaration of rights with the ordinance of 1787, it is found much more democratic.  The ordinance of 1787 has been highly and justly praised, but as Moses, in his "Illinois Historical and Statistical," has pointed out:

"It appears that some of the most important declaration of rights contained in these early constitutions and since re-enacted, were not included in the ordinance; namely,the liberty of the press, the right of free speech, the right of petitions, the freedom of elections, the right to bear arms and the prohibition of ex-post-facto laws."

POPULAR RIGHTS

As early as 1778, the Assembly of Virginia adopted a complete election code by which most of the local officers and officers of the common-wealth were to be elected.  Under the ordinance of 1787, no officer was to be elected during the first grade of territorial government and none but members of the Legislature during the second grade.  The qualifications for voting even for members of the Legislature were exacting, including heavy property qualifications, which reduced the electorate to a small class.

Further evidence of the democracy of the Virginia regime is furnished by acts of the assembly of that colony.  On December 5, 1785, an act was passed declaring that none shall be condemned without trail and that justice shall not be sold or deferred, and on December 6, 1785, an act was passed with an elaborate preamble declaring that all men are free to profess and maintain any religious belief, that such rights shall not be the cause of any disability and are the "natural rights of mankind."

WITCHCRAFT

Strange as it may seem, and in contrast with the enlightened policy of Virginia, amongst the first public acts of the government under the Virginia colony administered by John Todd, as lieutenant of the County of Illinois created by the General Assembly, was a prosecution and executive for witchcraft. A doting old negro was adjudged guilty of sorcery and witchcraft and was shot by order of Lieutenant Todd.

PURE FOOD

It is only in recent years that national and state governments have awakened to the necessity of inspection and supervision of foods, but as early as November 1786, and before the Illinois country had any other government than that of Virginia, an act was passed by the Virginia Assembly which forbade a butcher to sell the flesh of any animal dying otherwise than by slaughter and forbidding a baker, brewer, distiller or other person from selling unwholesome bread or drink.  The punishment for violation  of any provision of the law was ,for the first offense, amercement; for the second offense, by the pillory; for the third, fine and imprisonment, and for each subsequent offense, the person convicted was adjudged to hard labor for six months in the public works.

THE TERRITORIAL PERIOD

While democracy and broad humanity were the cardinal principles of the Virginia regime, precision and efficiency were marked characteristics of the administration of the Northwest Territory.
Whatever other criticisms may be visited upon the Governor, General Arthur St. Clair, lawyers must agree that he and the court appointed by the President, and constituted by the ordinance of 1787 the legislative power of the Territory, proved highly capable as law-makers.

What is known as the "Maxwell Code" was an admirable body of laws and to this day forms the basis of our statutes.  Good lawyers will concede that many of the laws enacted by this early law-making body were distinctly superior to any that have been passed by any succeeding body exercising legislative functions over Illinois territory.

There were, however, numerous acts or provisions in acts in those early days that provoke a smile or occasion surprise.


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