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

6, says, ‘For plain declaration of law, be it enacted, that if any person shall unlawfully and carnally know and abuse any woman child, under the age of ten years, &c. he shall suffer as a felon, without allowance of clergy.’ Lord Hale, however, 1 P. C. 630. thinks it rape independent of that statute, to know carnally a girl under twelve, the age of consent. Yet, 4 Bl. 212. seems to neglect this opinion; and as it was founded on the words of 3 E. 1. c. 13. and this is with us omitted, the offence of carnally knowing a girl under twelve, or ten years of age, will not be distinguished from that of any other. Co. 37. says ‘note that Sodomy is with mankind.’ But Finch’s L. B. 3. c. 24. ‘Sodomitry is a carnal copulation against nature, to wit, of man or woman in the same sex, or of either of them with beasts.’ 12 Co 36.

says, ‘It appears by the ancient authorities of the law that this was felony.’ Yet the 25 H. 8. declares it felony, as if supposed not to be so. Britton, c, 9. says, that Sodomites are to be burnt. F. N. B. 269. b. Fleta, L 1. c.

37. says, ‘Pecorantes et Sodomise in terra, vivi confodiantur.’ The Mirror makes it treason. Bestiality can never make any progress; it cannot therefore be injurious to society in any great degree, which is the true measure of criminality in foro cirili, and will ever be properly and severely punished, by universal derision. It may, therefore, be omitted. It was anciently punished with death, as it has been latterly. LI †lfrid. 31. and 25 H. 8. c. 6. see Beccaria, § 31. Montesq.

34

Bracton, Fleta, &c.

35

22 &l 23 Car. 2, c. 1. Maiming was felony at the Common law. Britton, c 95.  Mehemiurn autem dici poterit, ubi aliquis in aliqua. parte sui corporis la sionern acceperit, per quam affectus sit inutilis ad pugnandum: ut sirnanus ampuletur, vel pes, octilus privetur, vel scerda de osse capitis lavetnr, vel si quis dentes praer. isores amiserit, vel castratus fuerit, et talis pro mahemiato poterit adjudicari.’ Flela, L. 1. c. 40. ‘Et volons que nul maheme nesoit tenus forsque de membre toilet dount home est plus feble a combatre, sicome, del oyl, on de la mayn, ou del pie, on de la tete debruse, ou de les dentz devant.’ Britton, c. 25. For further definitions, see Braclon, L. 3.

c. 24 § 3. 4. Finch, L. B. 3. c. 12; Co. L. 126. a b 288. a;

3 Bl. 121; 4 Bl 205; Stamf. P C. L. 1. c. 41. I do not find any of these definitions confine the offence to wilful and malicious perpetrations of it. 22&23 Car. 2. c. 1, called the Coventry act, has the words ‘on purpose and of malice forethought.’ or does the Common law-prescribe the same punishment for disfiguring, as for maiming.

36

The punishment was by retaliation. ‘Et come ascun appele serra de tele felonie atteint et attende jugement, si soit le jugement tiel que il perde autriel membre come il avera toilet al pleintyre. El sy la pleynte soit faite de femme que avera toilet a home ses membres, en tiei cas perdra la femmela une meyn par jugement, come le membre dount ele avera trespasse.’ Britton, c 25. Flela, B 1. c. 40; LI.

†lfr. 19. 40.

37

25E.3. st 5. c. 2; 5 El c. 11; 18 El. c. 1; 8 and 9 W. 3.

c. 26; 15. and 16 G 2. c. 28; 7 Ann. q. 25. By the laws of †thelstan and Canute, this was punished by cutting off the hand. ‘Gifse mynetereful wurthe sleaman tha hand of, the he that fil mid worthe and sette iippon tha rnynet smithlhan.’ In English characters and words ‘if the minler foul [Criminal] wert, slay the hand off, that he the foul [crime] with wrought, and set upon the mint-smithery.’ LI,iEthelst.

14. ‘And selhe ofer this false wyrce, tholige thaera handa the he thaet false mid worhte.’ ‘Et si quis prater hanc, falsam fecerit, perdat manum quacum falsam confecit.’ LI.

Cnuti, 8. It had been death by the LI. †ihelredi, sub fine.

By those of H. 1. ‘Si quis cum falso deuario inventus fueril—fiat justitia mea, saltern de dextro pugno et de testiculis.’ Anno 1108. ‘Opera prelium vero est audire quam severus rex fuerit in pravos. Monetarios enim fere omnes totius Angliee fecit ementulari, et manus dextras abscindi, quia monetam furtive corruperant.’ Wilkins ib. et anno 1125.

When the Common law became settled, it appears to have been punishable by death. ‘Est aliud genus crirninis quod sub nomine falsi continetur, et tangit coronam domini regis, et nlfimum indncit supplicium, sicut de illis qui falsam fabricant monetasn, et qui de re non reproba, faciunt reprobam; sicut sunt retonsores deriarinruno’ Bract. L. 3. c 3. § 2. Fleta, L. 1. c. 22 § 4 Lord Hale thinks it was deemed petty treason at common law. 1 H. P. C. 220, 224. The bringing in false money with intent to merchandise, and make payment of it is treason, by 25 E. 3. But the best proof of the intention, is the act of passing it, and why not leave room for repentance here, as in other cases of felonies intended? I H P. C. 229.

38

Clipping, filing, rounding, impairing, scaling, lightening, (the words in the statutes) are included in ‘diminishing;’ gilding, in the word ‘casing;’ coloring in the word ‘washing;’ and falsifying or marking, is counterfeiting.’

39

El. c. 13. confined to four counties. 22 ^ 23 Car. 2. c.

7; 9 G. 1. c. 22, 9 G. 3. c. 29.43

40

Arson was a felony at Common law—3 Inst. 66; punished by a fine, Ll. †thelst. 6. But LI. Cnuti, 61. make it a ‘scetus inexpiable.’ ‘Hus brec and baernet and open thyfth and asbereniorth and hlaford swice after woruld laga is boileds.’ Word for word, ‘House break and burnt, and open theft, and manifest murdher, and lord-treachery, after world’s law is bootless.’ Bracton says, it was punished by death. ‘Si quis turbida seditione iricendium fecerit nequiter et in felonia, vel ob inimicitias, vel praedandi causa, capital puniatur pcena vel sententia.’ Bract. L. 3.

c. 27. He defines it as commissible by burning ‘cedes alien as.’ Ib. Britton, c. 9. ‘Ausi soitenquis de ceux que felonise-ment en temps de pees eient a litre blees ou autre messons ars, et ceux que ser-rount de ceo alteyniz, soient ars issint que eux soient punys par mesme cele chose dount ils pecherent.’ Fleia, L. I. c. 37. is a copy of Bracton.

The Mirror, c. 1. § 8. says, ‘Ardours sont que ardent cilie, ville, maison home, maison beast, ou auters chatelx, de lour felonie en temps de pace pour haine ou vengeance.’ Again, c.

2. § II., pointing oul the words of the appellor ‘jeo dise que Sebright, &c. entiel meas. on ou hiens mist de feu.’ Coke, 3 Inst. 67. says, ‘The ancient authors extended this felony further than houses, viz. to stacks of corn, waynes or carts of coal, wood, or other goods.’ He defines it as commissibie, not only on the inset houses, parcel of the mansion-house, but the outset also, as barn, stable, cowhouse, sheep-house, dairy-house, mill-house, and the like, parcel of the mansion house.’ But ‘burning of a barn, being no parcel of a mansion-house, is no felony,’ unless there be corn or hay within it. Ib. The 22 k. 23 Car. 2. and 9 G. 1.

are the principal statutes against arson. They extend the offence beyond the Common law.

41

Ann. st. 2. c. 9. 12 Ann. c. 18. 4 G. 1. c. 12. 26 G. 2.

c. 19.

42

11 h 12 W.3. c.7.

43

Robbery was a felony at Common law. 3 Inst. 68. ‘Scelus inexpiable,’ by the LI. Cnuti. 61. [See before in Arson.] It was punished with death. Briit c. 15, ‘De robbours et de larouns et de semblables mesfesours, soitaussi ententivernent enquis—et tauntost soient ceux robbours juges a la morl.’ Fleta says, ‘Si quis conviclus fuerit de bonis viri robbatis vel asportatis ad sectam regis judicium capitale subibit.’ L. 1. c. 39. See also Bract. L. 3. c. 32 § I.

44

Burglary was felony at the Common law. 3 Inst. 63 It was not distinguished by ancient authors, except the Mirror, from simple House-breaking, ib. 65. Burglary and Housebreaking were called ‘Hamsockne.’ ‘Diximus etiam de pacis violatione et de immunitatibus domus, si quis hoc in posterum fecetit ut perdat ornne quod habet, et sit in regis arbitro utrum vitam habeat.’ ‘Eac we quasdon be mundbryce and be ham socnum,sethe hit ofer this do tha:t he dolie enlles thces the age, and sy on Cyninges Jome hwsether be life age: and we quoth of mound-breach, and of home-seeking he who it after this do, that he dole all that he owe [owns], and is in kings doom whether he life owes [owns].’ LI. Eadmundi, c. 6 and see LI. Cnuti. 61. ‘bus btec,’ in notesion Arson, ante. A Burglar was also called a Burgessor.

‘Et soit enquis de Burgessours et sunt tenus Burgessours trestous ceux que felonisement en temps de pees debrusornt esglises ou auter mesons, ou murs ou portes de nos cytes, ou de nos Burghes.’ Britt. c. 10. ‘Burglaria est nocturna diruptio habitaculi alicujus, vel ecclesise, etiam murorum, portarurnve civitatis aut burgi, ad feloniam aliquam perpetrandam. Noclanter dico, recentiores se-cutus; veteres enim hoc non adjungunt.’ Spelm. Gloss, verb. Burglaria. It was punished with death. Ib. citn. from the office of a Coroner. It may be committed in the outset houses, as well as inset, 3 Inst. 65. though not under the same roof or contiguous, provided they be within the Curtilage or Homestall. 4 BI. 225. As by the Common law all felonies were clergiable, the stat. 23 H. 8. c. 1; 5 E. 6. c. 9. and 18 El. c. 7. first distinguished tfiem, by taking the clerical privilege of impunity from the principals, and 3 & 4 W. M.

c. 9. from accessories before the fact. No statute defines what Burglary is. The 12 Ann. c. 7. decides the doubt whether, where breaking is subsequent to entry, it is Burglary. Bacon’s Elements had affirmed, and T. H. P. C.

554. had denied it. Our bill must distinguish them by different degrees of punishment.

45

At the Common law, the offence of House-breaking was not distinguished from Burglary, and neither of them from any other larceny. The statutes at first took away clergy from Burglary, which made a leading distinction between the two offences. Later statutes, however, have taken clergy from so many cases of House-breaking, as nearly to bring the offences together again. These are 23 H. 8. c. 1; 1 E. 6. c.

12; 5 k 6 E. 6. c. 9; 3 & 4 W. M. c. 9; 39 El. c. 15; 10&11 W. 3. c.23; 12 Ann. c. 7. See Burr. 428; 4 Bl. 240. The circumstances, which in these statutes characterize the offence, seem to have been occasional and unsystematical. The houses on which Burglary may be committed, and the circumstances which constitute that crime, being ascertained, it will be better to define House-breoking by the same subjects and circumstances, and let the crimes be distinguished only by the hour at which they are committed, and the degree of punishment.

46

The offence of Horse-stealing seems properly distinguishable from other larcenies, here, where these animals generally run at large, the temptation being so great and frequent, and the facility of commission so remarkable. See 1 E. 6. c. 12; 23 E. 6. c. 33; 31 El. c. 12.

47

The distinction between grand and petty larceny is very ancient. At first 8d. was the sum which constituted grand larceny. LI. †lhelst. c. 1. ‘Ne parcatur ulli furi, qui furtum manutenens captus sit, supra 12 annos nafo, et supra 8 denarios.’ Afterwards, in the same king’s reign, it was raised to 12d. ‘Non parcaturalicui furi ultra 12 denarios, et ultra 12 annos nato—ut occide-mus ilium et capiamus omne quod possidet, et inprimis sumamus rei furto ablatse pretium ab hserede, ac dividatur postea reliquum in duas partes, una pars uxori, si munda, et facinoris conscia non sit; et residuum in duo, dimi-dium capiat rex, dimidium societas.’ LI. †thelst. Wilkins, p. 65. VOL. I. 17

48

LI. Inse, c. 7. ‘Si quis furetur ita ut uxor ejus et infans ipsius nesciani, solvat 60. solidos pcenae loco. Si autem furetur testantibus omuibus haere-dibus suis, abeant omnes in servilutem.’ Ina was King of the West Saxons, and began to reign A. C. 688. After the union of the Heptarchy, i. e. temp. †thelst. inter 924 and 940, we find it punishable with death as above. So it was inter 1017 and 1035, i. e. temp. Cnuti. LI. Cnuti 61. cited in notes on Arson. In the time of William the Conqueror, it seems lo have been made punishable by fine only. LI. Gul. Cohq. apud Wilk. p. 218. 220. This commutation, however, was taken away by LI. H. 1. anno 1108. ‘Si quis in furto vel latro-cinio deprehensus fuisset, suspenderetur: sublata wirgildorum, id est, pecu-niarse redemptions lege.’ Larceny is the felonious taking and carrying away of the personal goods of another.

1. As to the taking, the 3 & 4 VV. M. c. 9. § 5, is not additional to the Common law, but declaratory of it; because where only the care or use, and not the possession, of things is delivered, to take them was larceny at the Common law. The 33 H. 6. c. 1 and 21 11. 8. c. 7., indeed., have added to the Common law by making it larceny in a servant to convert things of his master’s. But qu¦re, if they should be imitated more than as to other breaches of trust in general. 2. As to the subject of larceny, 4 G. 2. c.32; 6 G. 3. c. 36 48; 43 El. c. 7; 15 Car. 2. c. 2; 23 G. 2 c. 26; 31 G. 2. c.

35; 9 G. 3. c. 41; 25 G. 2. c. 10. have extended larceny to things of various sorts, either real, or fixed to the realty. But the enumeration is unsystematical, and in this country, where the produce of the earth is so spontaneous as to have rendered things of this kind scarcely a breach of civility or good manners in the eyes of the people, qu¦re, if it would not too much enlarge the field of Criminal law?

The same may be questioned of 9 G. J. c. 22; 13 Car. 2. c.

10; 10 G. 2. c. 32; 5 G. 3. c. 14; 22 h 23 Car. 2. c. 25; 37 E. 3. c. 19. making it felony to steal animals ferte natures.

49

2 G. 2. c. 25 §3; 7 G 3. c. 50.

50

3 &. 4 W. & M. c. 9. § 4; 5 Ann. c. 31. § 5; 4 G. 1. c. 11. § 1.

51

1 E. 2.

52

Breach of prison at the Common law was capital, without regard to the crime for which the party was committed. ‘Cum pro criminis qualitate in carcerem recepti fuerint, conspiraverint (ut ruptis vinculis aut fracto carcere) evadant, atnplius (quam causa pro qua recepti sunt exposuit) puniendi sunt, videlicet ultimo supplicio, quamvis ex eo crimine innocentes inveniantur, propter quod inducti sunt in carcerem et imparcati.’ Bracton L. 3, c. 9. § 4. Britt. c. 11. Fleta, L. 1. c. 26. § 4. Yet in the Y. B. Hill. 1 H. 7.

2. Hussey says, that, by the opinion of Billing and Choke, and all the Justices, it was a felony in strangers only, but not in the prisoner himself. S. C. Fitz. Abr. Co-ron. 48.

They are principal felons, not accessaries, ib. Whether it was felony in the prisoner at Common law, is doubted. Stam.

P. C. 30. b. The Mirror c. 5. § 1. says, ‘Abusion est a tener escape de prisoner, ou de bruserie del gaole pur peche mortal 1, car eel usage nest garrant per nul ley, ne in nul part est use forsque in cest realme, et en France, ems [mais] est leu garrantie de ceo faire per la ley de nature’ 2 Inst. 589. The stat. 1 E. 2, ‘de fragentibus priso-nam,’ ‘restrained the judgment of life and limb for prisonbreaking, to cases where the offence of the prisoner required such judgment.’ It is not only vain but wicked, in a legislator to frame laws in opposition to the laws of nature, and to arm them with the terrors of death. This is truly creating crimes in order to punish them. The law of nature impels every one to escape from confinement; it should not, therefore, be subjected to punishment. Let the legislator restrain his criminal by walls, not by parchment. As to strangers breaking prison to enlarge an offender, they should, and may be fairly considered as accessaries after the fact. This bill saying nothing of the prisoner releasing himself by breach of jail, he will have the benefit of the first section of the bill, which repeals the judgment of life and death at the Common law.

53

‘Gifwiecan owwe wigleras mansworan, owwe morthwyrhtan owwe fule afylede eebere horcwenan ahwhar on lande wurthan agytene, thonne fyrsie man of earde, and claensie lha.

theode, owwe on earde forfare hi mid ealle, buton hi geswican and the deoper gebetan:’ ‘if witches, or weirds, man-swearers, or murther-wroughters, or foul, defiled, open whore-queens, ay—where in the land were gotten, then force them off earth, and cleanse the nation, or in earth forthfare them withal, buton they beseech, and deeply better.’ LI. Ed. et Guthr. c. 11. ‘Saga; mulieres barbara factitantes sacrificia, aut pestiferi, si cui mortem intulerint, neque id inficiari poterint, capitis pcena esto.’ LI. Aethelst. c. 6. apud Lambard. LI. Aelfr. 30. LI. Cnuti. c. 4. ‘Mesmo eel jugement (d’etrears) eyent sorcers, et sorceresses,’ &c. ut supra. Fleta tit et ubi supra. 3 Inst. 44. Trial of witches before Hale, in 1664.

The statutes 33 H. 8. c. 8. 5. El. c. 16 and 1. Jac. 1. c.

12. seem to be only in confirmation of the Common law. 9 G.

2. c. 25. punishes them with pillory and a year’s imprisonment 3 E. 6 c 15. 5 El. c. 15. punish fond, fantastical, and false prophecies, by fine and imprisonment.

54

1 Ann. c. 9. § 2.

55

As every treason includes within it a misprision of treason, so every felony includes a misprision, or misdemeanor. 1 Hale P. C. 652. 75S. ‘Licet fuerit felonia, tamen in eo continetur misprisio.’ 2 R. 3.10. Both principal and accessary, therefore, may be proceeded against in any case, either for felony, or misprision, at the Common law. Capital cases not being mentioned here, accessaries to them will of course be triable for misprisions, if the offender flies.

56

3E. I.e. 12.

57

Whether the judgment of penance lay at Common law. See 2 Inst. 178.2. H. P. C. 321. 4 Bl. 322. It was given on standing mute: but on challenging more than the legal number, whether that sentence, or sentence of death is to be given, seems doubtful. 2 H. P. C. 316. Qu¦re, whether it would not be better to consider the supernumerary challenge as merely void, and to proceed in the trial. Qu¦re too, in case of silence.

58

‘Cum Clericus sic de crimine convictus degradetur, non sequitur aliapoe-na pro uno delicto, vel pluribus ante degradationem perpetratis. Satis enim sufficit ei pro pcena degradatio, quse est magna capitis diminutio, nisi forte convictus fuerit de apostatia, quia hinc primo degradetur, et postea per manum laicalem comburetur, secundum quod accidit in concilio Oxoni celebrato a bonas memoriae S.

Cantuaren. Archiepiscopo de quodam diacono, qui seapostatavit pro quadam Judaea; qui cum esset per episcopum degradatus, statim fuit igni traditus per manum laicalem.’ Bract. L. 3. c. 9. § 2. ‘Et mesme eel jugement (i. e. qui ils soient ars) eye n’t sorcers et sorceresses, et sodomites et mescreauntz apertement atteyntz.’ Britt. c. 9.

‘Christiani autem Apostatae, sortilegii, et hujusmodi detractari debent et comburi.’ Fleta, L. 1. c. 37. § 2. see 3 Inst. 39; 12 Rep. 92; 1 H. P. C. 393. The extent of the clerical privilege at the Common law, 1. As to the crimes, seems very obscure and uncertain. It extended to no case where the judgment was not of life or limb. Note in 2. H. P. C. 326. This, therefore, excluded it in trespass, petty larceny, or killing se defendendo. In high treason against the person of the King, it seems not to have been allowed.

Note 1 H. P. C. 185. Treasons, therefore, not against the King’s person immediately, petty treasons and felonies, seem to have been the cases where it was allowed; and even of those, not for insidiatio viarum, depopulatio agrorum, or combustio domorum. The statute de Clero, 25 E. 3. st. 3. c.

4. settled the law on this head. 2. As to the persons, it extended to all clerks, always, and toties quoiies. 2 H. P.

C. 374. To nuns also. Fitz. Abr. Coron. 461. 22 E. 3. The clerical habit and tonsure were considered as evidence of the person being clerical. 26 Assiz. 19 & 20 E. 2. Fitz.

Coron. 233. By the 9 E. 4. 28. b. 34 H. 6. 49. a. b. simple reading became the evidence. This extended impunity to a great number of laymen, and toties quoties. The stat. 4 H.

7. c. 13. directed that real clerks should upon a second arraignment, produce their orders, and all others to be burnt in the hand with M. or T. on the first allowance of clergy, and not to be admitted to it a second time. A heretic, Jew, or Turk, (as being incapable of orders) could not have clergy. H Co. Rep. 29. b. But a Greek, or other alien, reading in a book of his own country, might. Bro.

Clergie. 20. So a blind man, if he could speak Latin. Ib.

21. qu, 11. Rep. 29. b. The orders entitling the party were bishops, priests, deacons, and sub-deacons, the inferior being reckoned Clerici in minoribus. 2 H. P. C. 373. Qu¦re, however, if this distinction is not founded on the stat. 23.

H. 8. c. 1; 25. H. 8. c. 32. By merely dropping all the statutes, it should seem that none but clerks would be entitled to this privilege, and that they would, toties quoties.

59

1 Ann. c. 9.

60

Manslaghter, counterfeiting, arson, asportation of vessels, robbery, burglary, house-breaking, horse-stealing, larceny.

61

It appears, from a blank space at the bottom of this paper, that a continuation had been intended. Indeed, from the loose manner in which the above notes are written, it may be inferred that they were originally intended as memoranda only, to be used in some more permanent form.

62

For the letter of Colonel Clarke, and the order referred to, see Appendix A.

63

The circumstances of the defeat of General Gates’s army, near Camden in August, 1780, being of historical notoriety, this statement is omitted.

64

The remainder of this letter is in cipher, to which there is no key in the Editor’s possession.

65

The original of this letter was in cipher. But annexed to the copy in cipher, is the above literal copy by the author.

66

Livy, Sullust, C¦sar, Cicero’s Epistles, Suetonius, Tacitus, Gibbon.

67

The original of the above was in cipher; though, as in the case of most of the Author’s letters in cipher, he prepared and preserved a literal copy of it.

68

This was the officer, who, on the evacuation of Fort Mifflin, after the British had passed the chevaux-de-frise on the Delaware, was left with fifteen men to destroy the works, which he did, and brought off his men successfully.

He had, before that, been commander of the Rattlesnake sloop of war, and had much annoyed the British trade; Being bred a seaman, he has returned to that vocation.

69

A hogshead of tobacco weighs generally about one thousand pounds, English, equal to nine hundred and seventeen pounds French. The seven hogsheads he sailed with, would therefore weigh, according to this estimate, six thousand four hundred and twenty-three pounds. They actually weighed more on the first essay. When afterwards weighed at Landivisiau, they had lost eighty-four pounds on being carried into a drier air. Perhaps, too, a difference of weights may have entered into this apparent loss.