Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson, Volume 1

It appears to them, that the prisoner Dejean was, on all occasions, the willing and cordial instrument of Governor Hamilton, acting both as judge and keeper of the jails, and instigating and urging him, by malicious insinuations and untruths, to increase, rather than relax his severities, heightening the cruelty of his orders by his manner of executing them, offering at one time a reward to one man to be hangman for another, threatening his life on refusal, and taking from his prisoners the little property their opportunities enabled them to acquire.

It appears, that the prisoner Lamothe, was a captain of the volunteer scalping parties of Indians and whites, who went, from time to time, under general orders to spare neither men, women, nor children. From this detail of circumstances, which arose in a few cases only, coming accidentally to the knowledge of the board, they think themselves authorized by fair deduction, to presume what would be the horrid history of the sufferings of the many, who have expired under their miseries (which, therefore, will remain for ever untold), or who have escaped from them, and are yet too remote and too much dispersed, to bring together their well founded accusations against the prisoners.

They have seen that the conduct of the British officers, civil and military, has in the whole course of this war, been savage, and unprecedented among civilized nations; that our officers taken by them, have been confined in crowded jails, loathsome dungeons, and prison-ships, loaded with irons, supplied often with no food, generally with too little for the sustenance of nature, and that little sometimes unsound and unwholesome, whereby such numbers have perished, that captivity and death have with them been almost synonymous; that they have been transported beyond seas, where their fate is out of the reach of our inquiry, have been compelled to take arms against their country, and, by a refinement in cruelty, to become murderers of their own brethren.

Their prisoners with us have, on the other hand, been treated with humanity and moderation; they have been fed, on all occasions, with wholesome and plentiful food, suffered to go at large within extensive tracts of country, treated with liberal hospitality, permitted to live in the families of our citizens, to labor for themselves, to acquire and enjoy profits, and finally to participate of the principal benefits of society, privileged from all burdens.

Reviewing this contrast, which cannot be denied by our enemies themselves, in a single point, and which has now been kept up during four years of unremitting war, a term long enough to produce well-founded despair that our moderation may ever lead them to the practice of humanity; called on by that justice we owe to those who are fighting the battles of our country, to deal out, at length, miseries to their enemies, measure for measure, and to distress the feelings of mankind by exhibiting to them spectacles of severe retaliation, where we had long and vainly endeavored to introduce an emulation in kindness; happily possessed, by the fortune of war, of some of those very individuals who, having distinguished themselves personally in this line of cruel conduct, are fit subjects to begin on, with the work of retaliation; this board has resolved to advise the Governor, that the said Henry Hamilton, Philip Dejean and William Lamothe, prisoners of war, be put into irons, confined in the dungeon of the public jail, debarred the use of pen, ink, and paper, and excluded all converse, except with their keeper. And the Governor orders accordingly.

Arch. Blair, C. C.

[NOTE B]—IN COUNCIL, September 29, 1779

The board having been, at no time, unmindful of the circumstances attending the confinement of Lieutenant Governor Hamilton, Captain Lamothe, and Philip Dejean, which the personal cruelties of those men, as well as the general conduct of the enemy, had constrained them to advise: wishing, and willing to expect, that their sufferings may lead them to the practice of humanity, should any future turn of fortune, in their favor, submit to their discretion the fate of their fellow creatures; that it may prove an admonition to others, meditating like cruelties, not to rely for impunity in any circumstances of distance or present security; and that it may induce the enemy to reflect, what must be the painful consequences, should a continuation of the same conduct on their part impel us again to severities, while such multiplied subjects of retaliation are within our power: sensible that no impression can be made on the event of the war, by wreaking vengeance on miserable captives; that the great cause which has animated the two nations against each other, is not to be decided by unmanly cruelties on wretches, who have bowed their necks to the power of the victor, but by the exercise of honorable valor in the field: earnestly hoping that the enemy, viewing the subject in the same light, will be content to abide the event of that mode of decision, and spare us the pain of a second departure from kindness to our captives: confident that commiseration to our prisoners is the only possible motive, to which can be candidly ascribed, in the present actual circumstances of the war, the advice we are now about to give; the board does advise the Governor to send Lieutenant Governor Hamilton, Captain Lamothe, and Philip Dejean, to Hanover court house, there to remain at large, within certain reasonable limits, taking their parole in the usual manner. The Governor orders accordingly.

Arch. Blair, C. C.

Ordered, that Major John Hay be sent, also, under parole to the same place.

Arch. Blair, C. C.

[NOTE C]—IN COUNCIL, October 8, 1779

The Governor is advised to take proper and effectual measures for knowing, from time to time, the situation and treatment of our prisoners by the enemy, and to extend to theirs, with us a like treatment, in every circumstance; and, also, to order to a proper station, the prison-ship fitted up on recommendation from Congress from the reception and confinement of such prisoners of war, as shall be sent to it.

Arch. Blair, C. C.

[NOTE D.]—FEMALE CONTRIBUTIONS, IN AID OF THE WAR, probably in 1780

[After letter XVII. in the MS. is inserted the following memorandum.]

Female Contributions, in aid of the War, probably in 1780.

Mrs. Sarah Gary, of Scotchtown, a watch-chain, cost £7 sterling.

Mrs.– Ambler, five gold rings.

Mrs. Rebecca Ambler, three gold rings.

Mrs.– Nicholas, a diamond drop.

Mrs. Griffin, of Dover, ten half joes.

Mrs. Gilmer, five guineas.

Mrs. Anne Ramsay (for Fairfax), one half joe, three guineas, three pistereens, one bit.

Do. for do. paper money, bundle No. 1, twenty thousand dollars, No. 2, twenty-seven thousand dollars, No. 3, fifteen thousand dollars, No. 4, thirteen thousand five hundred and eighteen dollars and one third.

Mrs. Lewis (for Albemarle), £1559 8s. paper money,

Mrs. Weldon, £39 18s. new, instead of £1600, old paper money,

Mrs. Blackburn (for Prince William), seven thousand five hundred and six dollars, paper money.

Mrs. Randolph, the younger, of Chatsworth, eight hundred dollars.

Mrs. Fitzhugh and others, £558.

[NOTE E.]—FROM LORD CORNWALLIS

Lord Cornwallis’s Letter to Lieutenant Colonel Nisbet Balfour, Commander at Ninety Six.

I have the happiness to inform you, that on Wednesday the 16th instant, I totally defeated General Gates’s army. One thousand were killed and wounded, about eight hundred taken prisoners. We are in possession of eight pieces of brass cannon, all they had in the field, all their ammunition wagons, a great number of arms, and one hundred and thirty baggage wagons: in short, there never was a more complete victory. I have written to Lieutenant Colonel Turnbull, whom I sent to join Major Johnson on Little river, to push on after General Sumpter to the Wax-haws, whose detachment is the only collected force of rebels in all this country. Colonel Tarleton is in pursuit of Sumpter. Our loss is about three hundred killed and wounded, chiefly of the thirty-third regiment and volunteers, of Ireland. I have given orders that all the inhabitants of this province, who have subscribed and taken part in this revolt, should be punished with the greatest rigor; also, that those who will not turn out, may be imprisoned, and their whole property taken from them, and destroyed. I have also ordered that satisfaction should be made for their estates, to those who have been injured and oppressed by them. I have ordered, in the most positive manner, that every militia man who has borne arms with us and afterwards joined the enemy, shall be immediately hanged. I desire you will take the most rigorous measure to punish the rebels in the district in which you command, and that you will obey, in the strictest manner, the directions I have given in this letter, relative to the inhabitants of this country.

Cornwallis.

August, 1780.

[NOTE F.]—TO LORD CORNWALLIS

TO LORD CORNWALLIS.

Portsmouth, Virginia, November 4, 1780.

My Lord,

I have been here near a week, establishing a post. I wrote to you to Charleston, and by another messenger, by land. I cannot hear, for a certainty, where you are: I wait your orders. The bearer is to be handsomely rewarded, if he brings me any note or mark from your Lordship.

A. L.

1

For a sketch of the life and character of Mr. Wythe, see my letter of August 31, 1820, to Mr. John Saunderson. [See Appendix, note A.]

2

The name of a public room in the Raleigh.

3

Life of Washington, vol. ii. p. 151.

4

See Appendix, note B.

5

See Girardin’s History of Virginia, Appendix No. 12. note.

6

See Appendix, note D.

7

In this publication, the parts struck out are printed in Italics and inclosed in brackets—and those inserted are inclosed in parenthesis.

8

The above note of the author is on a slip of paper, pasted in at the end of the Declaration. Here is also sewed into the MS. a slip of newspaper containing, under the head ‘Declaration of Independence,’ a letter from Thomas Mc’Kean to Messrs. William M’Corkle & Son, dated ‘Philadelphia, June 16 1817.’ This letter is to be found in the Port Folio,

Sept. 1817, p. 249.

9

Here terminate the author’s notes of the ‘earlier debates on the confederation,’ and recommences the MS. begun by him in 1821.

10

His ostensible character was to be that of a merchant, his real one that of agent for military supplies, and also for sounding the dispositions of the government of France, and seeing how far they would favor us, either secretly or openly. His appointment had been by the Committee of Foreign

Correspondence, March, 1776.

11

Extract from the despatch of the Count de Vergennes, to the Marquis de Verac, Ambassador from France, at the Hague, dated March 1, 1788.

‘The King will give his aid, as far as may be in his power, towards the success of the affair, and you will, on his part, invite the Patriots to communicate to him their views, their plans, and their discontents. You may assure them, that the King takes a real interest in themselves, as well as their cause, and that they may rely upon his protection. On this they may place the greater dependence, as we do not conceal, that if the Stadtholder resumes his former influence, the English system will soon prevail, and our alliance become a mere affair of the imagination. The Patriots will readily feel, that this position would be incompatible both with the dignity and consideration of his Majesty. But in case the chief of the Patriots should have to fear a division, they would have time sufficient to reclaim those whom the Anglomaniacs had misled, and to prepare matters in such a manner, that the question when again agitated, might be decided according to their wishes.

In such a hypothetical case, the King authorizes you to act in concert with them, to pursue the direction which they may think proper to give you, and to employ every means to augment the number of the partisans of the good cause. It remains for me to speak of the personal security of the Patriots. You may assure them, that under every circumstance, the King will take them under his immediate protection, and you will make known wherever you may judge necessary, that his Majesty will regard, as a personal offence, every undertaking against their libeity. It is to be presumed that this language, energetically maintained, may have some effect on the audacity of the Anglomaniacs, and that the Prince de Nassau will feel that he runs some risk in provoking the resentment of his Majesty.‘

12

In the impeachment of Judge Pickering, of New Hampshire, a habitual and maniac drunkard, no defence was made. Had there been, the party vote of more than one third of the Senate would have acquitted him.

13

12. C.2. c. 18.  15. C.2. c.11. 25. C.2. c.7. 7. 8. W. M. c.22. 11. W.34. Anne. 6. C.2. c.13.

14

On further inquiry, I find two instances of dissolutions before the Parliament would, of itself, have been at an end:

viz. the Parliament called to meet August 24, 1698, was dissolved by King William, December 19, 1700, and a new one called, to meet February 6, 1701, which was also dissolved

November 11, 1701, and a new one met December 30, 1701.

15

In this publication, the original Saxon words are given, but, owing to the want of Saxon letter, they are printed in common type.

16

This takes away the punishment of cutting off the hand of a person striking another, or drawing his sword in one of the superior courts of justice. Stamf. P. C. 38; 33 H. 8. c. 12. In an earlier stage of the Common law, it was death.

‘Gif hwa gefeohte on Cyninges huse sy he scyldig ealles his yrfes, and sy on Cyninges dome hwsether he lif age de nage:

si quis in regis domo pugnet, perdat omnem suam ha; reditatem, et in regis sit arbitrio, possideat vitarn an non possideat.‘ LI. Inae. 6. &c.

17

25 E 3. st. 5. c. 2; 7 W. 3. c. 3, § 2.

18

Though the crime of an accomplice in treason is not here described yet Lord Coke says, the partaking and maintaining a treason herein described makes him a principal in that treason. It being a rule that in treason all are principals.

3 inst. 138; 2 Inst. 590;  H. 6. c. 5.

19

These words in the English statute narrow its operation.

A man adhering to the enemies of the Commonwealth, in a foreign country, would certainly not be guilty of treason with us, if these words be retained. The convictions of treason of that kind in England, have been under that branch of the statute which makes the compassing the king’s death treason. Foster, 196, 197. But as we omit that branch, we must by other means reach this flagrant case.

20

The stat. 25 E. 3. directs all other cases of treason to await the opinion of Parliament. This has the effect of negative words, excluding all other treasons. As we drop that part of the statute, we must, by negative words, prevent an inundation of common law treasons. I strike out the word ‘it,’ therefore, and insert ‘the said cases and no others.’ Quaere, how far those negative words may affect the case of accomplices above mentioned? Though if their case was within the statute, so as that it needed not await the opinion of Parliament, it should seem to be also within our act, so as not to be ousted by the negative words.

21

25 G. 2. c. 37.

22

Qu¦re, if the estates of both parties in a duel should not be forfeited? The deceased is equally guilty with a suicide.

23

Qu¦re, if these words may not be omitted? By the Common law, one witness in treason was sufficient. Foster, 233.

Plowd. 8. a. Mirror, c. 3. § 34. Waterhouse on Fortesc de Laud. 252. Carth. 144 per Holt. But Lord Coke, contra, 3 Inst 26. The stat. 1 E. 6. c 12. &5E.6. c. 11. first required two witnesses in treason. The clause against high treason supra, does the same as to high treason; but it seems if 1st and 5th E. 6. are dropped, petty treason will be tried and proved, as at Common law, by one witness. But qu¦re, Lord Coke being contra, whose opinion it is ever dangerous to neglect.

24

These words are intended to take away the peremptory challenge of thirty-five jurors. The same words being used 1 & 2 Ph. k. M. c. 10. are deemed to have restored the peremptory challenge in high treason; and consequently are sufficient to take it away. Foster, 237.

25

Petty treason is considered in law only as an aggravated murder. Foster, 107,323. A pardon of all murders, pardons petty treason. 1 Hale P. C. 378. See 2 H. P. C. 340, 342. It is also included in the word ‘felony,’ so that a pardon of all felonies, pardons petty treason.

26

Manslaughter is punishable at law, by burning in the hand, and forfeiture of chattels.

27

It is best, in this act, to lay down principles only, in order that it may not for ever be undergoing change: and, to carry into effect the minuter parts of it; frame a bill ‘for the employment and government of felons, or male-factors, condemned to labor for the Commonwealth,’ which may serve as an Appendix to this, and in which all the particulars requisite may be directed: and as experience will, from time to time, be pointing out amendments, these may be made without touching this fundamental act. See More’s Utopia pa. 50, for some good hints. Fugitives might, in such a bill, be obliged to work two days for every one they absent themselves.

28

The shooting at a wild fowl, and killing a man, is homicide by misadventure. Shooting at a pullet, without any design to take it away, is manslaughter; and with a design to take it away, is murder. 6 Sta. tr. 222. To shoot at the poultry of another, and thereby set fire to his house, is arson, in the opinion of some. Dalt. c. 116 1 Hale’s P. C.

569, contra.

29

Beccaria, § 32. Suicide. Homicides are, 1. Justifiable. 2.

Excusable. 3. Felonious. For the last, punishments have been already provided. The first are held to be totally without guilt, or rather commendable. The second are, in some cases, not quite unblamable. These should subject the party to marks of contrition; viz. the killing of a man in defence of property; so also in defence of one’s person, which is a species of excusable homicide; because, although cases may happen where these also are commendable, yet most frequently they are done on too slight appearance of danger; as in return for a blow, kick, fillip, &c; or on a person’s getting into a house, not anirno furandi, but perhaps veneris causa, &c. Bracton says, ‘Si quis furem noctupnum occiderit, ita demum impune foret, si parcere ei sine periculo suo non potuit; si autem potuit, aliter erit.’ ‘Item erit si quis hamsokne qua; dicitur invasio domus contra pacem domini regis in domo sua se defenderit, et invasor occisus fuerit; impersecutus et inultus ramanebit, si ille quem invasit aliter se defendere non potuit; dicitur enim quod non est dignus habere pacem qui non vult observare earn.’ L.3. c.23. § 3. ‘Qui latronetn Occident, non tenetur, nocturnum vel diurnnm, si aliter periculum evadere non possit; tenetur ta-men, si possit. Item non tenetur si per inforlunium, et non anitno et voluntate occidendi, nee dolus, nec culpa ejus inveniatur.’ L.3. c.36. § 1. The stat.

24 H. 8. c. 5 is therefore merely declaratory of the Common law. See on the general subject, Puffend. 2. 5. § 10, 11, 12, 16, 17. Excusable homicides are by misadventure, or in self-defence. It is the opinion of some lawyers, that the Common law punished these with death, and that the statute of Marlbridge, c. 26. and Gloucester, c. 9. first took away this by giving them title to a pardon, as matter of right, and a writ of restitution of their goods. See 2 Inst, 148.

315; 3 Inst. 55. Bracton, L. 3. c. 4. § 2. Fleta L, 1. c.

23. § 14, 15; 21 E. 3. 23. But it is believed never to have been capital. 1 H. P. C. 425; 1 Hawk. 75; Foster, 282; 4 Bl.

188. It seems doubtful also, whether at Common law, the party forfeited all his chattels in this case, or only paid a weregild. Foster, ubi supra, doubts, and thinks it of no consequence, as the statute of Gloucester entitles the party to Royal grace, which goes as well to forfeiture as life. To me, there seems no reason for calling these excusable homicides, and the killing a man in defence of property, a justifiable homicide. The latter is less guiltless than misadventure or self defence.

Suicide is by law punishable by forfeiture of chattels. This bill exempts it from forfeiture. The suicide injures the state less than he who leaves it with his effects. If the latter then be not punished, the former should not. As to the example, we need not fear its influence. Men are too much attached to life, to exhibit frequent instances of depriving themselves of it. At any rate, the quasipunishment of confiscation will not prevent it. For if one be found who can calmly determine to renounce life, who is so weary of his existence here, as rather to make experiment of what is beyond the grave, can we suppose him, in such a state of mind, susceptible of influence from the losses to his family by confiscation? That men in general, too, disapprove of this severity, is apparent from the constant practice of juries finding the suicide in a state of insanity; because they have no other way of saving the forfeiture. Let it then be done away.

30

Beccaria, § 19; 25 G. 2. c. 37.

31

13 E. 1. c. 34. Forcible abduction of a woman having substance, is felony by 3 H. 7, c 2; 3. Inst. 61; 4 Bl. 208.

If goods be taken, it will be felony as to them, without this statute: and as to the abduction of the woman, qu¦re if not better to leave that, and also kidnapping, 4 Bl. 219. to the Common law remedies, viz. fine, imprisonment, and pillory, Raym. 474; 2 Show. 221; Skin. 47; Comb. 10. the writs of Homine replegiando, Capias in Withernam, Habeas corpus, and the action of trespass? Rape was felony at the Common law. 3 Inst. 60 but see 2 Inst. 181. Further—for its definition see 2 Inst. 180. Bracton L.3. 28. § 1. says, the punishment of rape is ‘amissio membrorum, ut sit membrumpro membra, quia virgo, cum corrumpitur, membrum amittit, et ideo corruptor puniatur in eo in quo deliquit; oculos igitur amittat propter aspectum decoris quo virginem concupivit;

amittat et testiculos qui calorem stupri induxerunt. Olim quidem corruptores virginitatis et castitatis suspendebantur et eorum fautores, &c. Modernis tamen temporibus aliter observatur,’ &.c. And Fleta, ‘Solet justiciarius pro quolibet mahemio ad amissionem testiculorum vel oculorum convictum coudemnare, sed non sine errore, eo quod id judicium nisi in corruptione virginum lantum competebat; nam pro virginitatis corruptione solebant abscidi et merito judicari, ut sic pro membro quod abstulit, membrum per quod deliquit amitteret, viz. lesticulos, qui calorem stupri induxerunt,’ &c. Fleta. L. 1. c. 40. § 4. ‘Gif theow man theowne to nydhffimed genyde, gabete mid his eowende: Si servus servam ad sfuprum coegerit, compenset hoc virga sua virili. Si quis pnellam,’ &c. Ll.†liridi. 25. ‘Hi purgst femme per forze forfait ad les membres.’ LI. Gul. Conq. 19.

32

1 Jac. 1. c. 11. Polygamy was not penal till the statute of 1 Jac. The law contented itself with the nullity of the act. 4 Bl. 163. 3 Inst. 88.

33

25. H. 8. c. 6. Buggery is twofold. 1. With mankind, 2.

with beasts. Buggery is the genus, of which Sodomy and Bestiality are the species. 12 Co. 37. says, In Dyer, 304. a man was indicted, and found guilty of a rape on a girl of seven years old. The court doubted of the rape of so tender a girl; but if she had been nine years old, it would have been otherwise.’ 14 Eliz. Therefore the statute 18 Eliz. c.