Chapter VII: Appendix: To the Memoir (2)

‘That we next proceed to consider the conduct of his Majesty, as holding the Executive powers of the laws of these states, and mark out his deviations from the line of duty. By the constitution of Great Britain, as well as of the several American States, his Majesty possesses the power of refusing to pass into a law, any bill which has already passed the other two branches of the legislature. His Majesty, however, and his ancestors, conscious of the impropriety of opposing their single opinion to the united wisdom of two Houses of Parliament, while their proceedings were unbiased by interested principles, for several ages past, have modestly declined the exercise of this power, in that part of his empire called Great Britain. But, by change of circumstances, other principles than those of justice simply, have obtained an influence on their determinations. The addition of new states to the British empire, has produced an addition of new, and sometimes, opposite interests. It is now, therefore, the great office of his Majesty, to resume the exercise of his negative power, and to prevent the passage of laws by any one legislature of the empire, which might bear injuriously on the rights and interests of another. Yet this will not excuse the wanton exercise of this power, which we have seen his Majesty practise on the laws of the American legislatures. For the most trifling reasons, and sometimes for no conceivable reason at all, his Majesty has rejected laws of the most salutary tendency. The abolition of domestic slavery is the great object of desire in those colonies, where it was, unhappily, introduced in their infant state. But previous to the enfranchisement of the slaves we have, it is necessary to exclude all further importations from Africa. Yet our repeated attempts to effect this, by prohibitions, and by imposing duties which might amount to a prohibition, have been hitherto defeated by his Majesty’s negative: thus preferring the immediate advantages of a few British corsairs to the lasting interests of the American States, and to the rights of human nature, deeply wounded by this infamous practice. Nay, the single interposition of an interested individual against a law, was scarcely ever known to fail of success, though in the opposite scale were placed the interests of a whole country. That this is so shameful an abuse of a power, trusted with his Majesty for other purposes, as if, not reformed, would call for some legal restrictions.

‘With equal inattention to the necessities of his people here, has his Majesty permitted our laws to lie neglected in England for years, neither confirming them by his assent, nor annulling them by his negative: so that such of them as have no suspending clause, we hold on the most precarious of all tenures, his Majesty’s will; and such of them as suspend themselves till his Majesty’s assent be obtained, we have feared might be called into existence at some future and distant period, when time and change of circumstances shall have rendered them destructive to his people here. And, to render this grievance still more oppressive, his Majesty, by his instructions, has laid his Governors under such restrictions, that they can pass no law of any moment, unless it have such suspending clause: so that, however immediate may be the call for legislative interposition, the law cannot be executed till it has twice crossed the Atlantic, by which time the evil may have spent its whole force.

‘But in what terms reconcilable to Majesty, and,at the same time to truth, shall we speak of a late instruction to his Majesty’s Governor of the colony of Virginia, by which he is forbidden to assent to any law for the division of a county, unless the new county will consent to have no representative in Assembly? That colony has as yet affixed no boundary to the westward. Their Western counties, therefore, are of indefinite extent. Some of them are actually seated many hundred miles from their Eastern limits. Is it possible, then that his Majesty can have bestowed a single thought on the situation of those people, who, in order to obtain justice for injuries, however great or small, must, by the laws of that colony, attend their county court at such a distance, with all their witnesses, monthly, till their litigation be determined? Or does his Majesty seriously wish, and publish it to the world, that his subjects should give up the glorious right of representation, with all the benefits derived from that, and submit themselves to be absolute slaves of his sovereign will? Or is it rather meant to confine the legislative body to their present numbers, that they may be the cheaper bargain, whenever they shall become worth a purchase?

‘One of the articles of impeachment against Tresilian and the other Judges of Westminster Hall, in the reign of Richard the Second, for which they suffered death, as traitors to their country, was, that they had advised the King that he might dissolve his Parliament at any time: and succeeding Kings have adopted the opinion of these unjust Judges. Since the establishment, however, of the British constitution, at the glorious Revolution, on its free and ancient principles, neither his Majesty nor his ancestors have exercised such a power of dissolution in the island of Great Britain;* and, when his Majesty was petitioned by the united voice of his people there to dissolve the present Parliament, who had become obnoxious to them, his Ministers were heard to declare, in open Parliament, that his Majesty possessed no such power by the constitution. But how different their language, and his practice, here! To declare, as their duty required, the known rights of their country, to oppose the usurpation of every foreign judicature, to disregard the imperious mandates of a Minister or Governor, have been the avowed causes of dissolving Houses of Representatives in America. But if such powers be really vested in his Majesty, can he suppose they are there placed to awe the members from such purposes as these? When the representative body have lost the confidence of their constituents, when they have notoriously made sale of their most valuable rights, when they have assumed to themselves powers which the people never put into their hands, then, indeed, their continuing in office becomes dangerous to the state, and calls for an exercise of the power of dissolution. Such being the causes for which the representative body should, and should not, be dissolved, will it not appear strange, to an unbiassed observer, that that of Great Britain was not dissolved, while those of the colonies have repeatedly incurred that sentence?

* 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.

But your Majesty or your Governors have carried this power beyond every limit known or provided for by the laws. After dissolving one House of Representatives, they have refused to call another, so that, for a great length of time, the legislature provided by the laws has been out of existence. From the nature of things, every society must at all times possess within itself the sovereign powers of legislation. The feelings of human nature revolt against the supposition of a state so situated, as that it may not, in any emergency, provide against dangers which perhaps threaten immediate ruin. While those bodies are in existence to whom the people have delegated the powers of legislation, they alone possess, and may exercise, those powers. But when they are dissolved, by the lopping off one or more of their branches, the power reverts to the people, who may use it to unlimited extent, either assembling together in person, sending deputies, or in any other way they may think proper. We forbear to trace consequences further; the dangers are conspicuous with which this practice is replete.

‘That we shall, at this time also, take notice of an error in the nature of our land-holdings, which crept in at a very early period of our settlement. The introduction of the feudal tenures into the kingdom of England, though ancient, is well enough understood to set this matter in a proper light. In the earlier ages of the Saxon settlement, feudal holdings were certainly altogether unknown, and very few, if any, had been introduced at the time of the Norman conquest. Our Saxon ancestors held their lands, as they did their personal property, in absolute dominion, disencumbered with any superior, answering nearly to the nature of those possessions which the Feudalists term Allodial. William the Norman first introduced that system generally. The lands which had belonged to those who fell in the battle of Hastings, and in the subsequent insurrections of his reign, formed a considerable proportion of the lands of the whole kingdom. These he granted out, subject to feudal duties, as did he also those of a great number of his new subjects, who, by persuasions or threats, were induced to surrender them for that purpose. But still much was left in the hands of his Saxon subjects, held of no superior, and not subject to feudal conditions. These, therefore, by express laws, enacted to render uniform the system of military defence, were made liable to the same military duties as if they had been feuds: and the Norman lawyers soon found means to saddle them, also, with all the other feudal burthens. But still they had not been surrendered to the King, they were not derived from his grant, and therefore they were not holden of him. A general principle, indeed, was introduced, that “all lands in England were held either mediately or immediately of the Crown:” but this was borrowed from those holdings which were truly feudal, and only applied to others for the purposes of illustration. Feudal holdings were, therefore, but exceptions out of the Saxon laws of possession, under which all lands were held in absolute right. These, therefore, still form the basis or groundwork of the common law, to prevail wheresoever the exceptions have not taken place. America was not conquered by William the Norman, nor its lands surrendered to him or any of his successors. Possessions there are, undoubtedly, of the Allodial nature. Our ancestors, however, who migrated hither, were laborers, not lawyers. The fictitious principle, that all lands belong originally to the King, they were early persuaded to believe real, and accordingly took grants of their own lands from the Crown. And while the Crown continued to grant for small sums and on reasonable rents, there was no inducement to arrest the error, and lay it open to public view. But his Majesty has lately taken on him to advance the terms of purchase and of holding to the double of what they were; by which means the acquisition of lands being rendered difficult, the population of our country is likely to be checked. It is time, therefore, for us to lay this matter before his Majesty, and to declare that he has no right to grant lands of himself. From the nature and purpose of civil institutions, all the lands within the limits which any particular society has circumscribed around itself, are assumed by that society, and subject to their allotment; this may be done by themselves assembled collectively, or by their legislature, to whom they may have delegated sovereign authority: and, if they are allotted in neither of these ways, each individual of the society may appropriate to himself such lands as he finds vacant, and occupancy will give him title.

‘That, in order to enforce the arbitrary measures before complained of, his Majesty has, from time to time, sent among us large bodies of armed forces, not made up of the people here, nor raised by the authority of our laws. Did his Majesty possess such a right as this, it might swallow up all our other rights whenever he should think proper. But his Majesty has no right to land a single armed man on our shores; and those whom he sends here are liable to our laws for the suppression and punishment of riots, routs, and unlawful assemblies, or are hostile bodies invading us in defiance of law. When, in the course of the late war, it became expedient that a body of Hanoverian troops should be brought over for the defence of Great Britain, his Majesty’s grandfather, our late sovereign, did not pretend to introduce them under any authority he possessed. Such a measure would have given just alarm to his subjects of Great Britain, whose liberties would not be safe if armed men of another country, and of another spirit, might be brought into the realm at any time, without the consent, of their legislature. He, therefore, applied to Parliament, who passed an act for that purpose, limiting the number to be brought in, and the time they were to continue. In like manner is his Majesty restrained in every part of the empire. He possesses indeed the executive power of the laws in every state; but they are the laws of the particular state, which he is to administer within that state, and not those of any one within the limits of another. Every state must judge for itself, the number of armed men which they may safely trust among them, of whom they are to consist, and under what restrictions they are to be laid. To render these proceedings still more criminal against our laws, instead of subjecting the military to the civil power, his Majesty has expressly made the civil subordinate to the military. But can his Majesty thus put down all law under his feet? Can he erect a power superior to that which erected himself? He has done it indeed by force; but let him remember that force cannot give right.

‘That these are our grievances, which we have thus laid before his Majesty, with that freedom of language and sentiment which becomes a free people, claiming their rights as derived from the laws of nature, and not as the gift of their Chief Magistrate. Let those flatter, who fear: it is not an American art. To give praise where it is not due, might be well from the venal, but would ill beseem those who are asserting the rights of human nature. They know, and will, therefore, say, that Kings are the servants, not the proprietors of the people. Open your breast, Sire, to liberal and expanded thought. Let not the name of George the Third be a blot on the page of history. You are surrounded by British counsellors, but remember that they are parties. You have no ministers for American affairs, because you have none taken from among us, nor amenable to the laws on which they are to give you advice. It behoves you, therefore, to think and to act for yourself and your people. The great principles of right and wrong are legible to every reader: to pursue them, requires not the aid of many counsellors. The whole art of government consists in the art of being honest. Only aim to do your duty, and mankind will give you credit where you fail. No longer persevere in sacrificing the rights of one part of the empire, to the inordinate desires of another: but deal out to all, equal and impartial right. Let no act be passed by any one legislature, which may infringe on the rights and liberties of another. This is the important post in which fortune has placed you, holding the balance of a great, if a well poised empire. This, Sire, is the advice of your great American council, on the observance of which may, perhaps, depend your felicity and future fame, and the preservation of that harmony which alone can continue, both to Great Britain and America, the reciprocal advantages of their connection. It is neither our wish nor our interest to separate from her. We are willing, on our part, to sacrifice every thing which reason can ask, to the restoration of that tranquillity for which all must wish. On their part, let them be ready to establish union on a generous plan. Let them name their terms, but let them be just. Accept of every commercial preference it is in our power to give, for such things as we can raise for their use, or they make for ours. But let them not think to exclude us from going to other markets, to dispose of those commodities which they cannot use, nor to supply those wants which they cannot supply. Still less, let it be proposed, that our properties, within our own territories, shall be taxed or regulated by any power on earth, but our own. The God who gave us life, gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them. This, Sire, is our last, our determined resolution. And that you will be pleased to interpose, with that efficacy which your earnest endeavors may insure, to procure redress of these our great grievances, to quiet the minds of your subjects in British America against any apprehensions of future encroachment, to establish fraternal love and harmony through the whole empire, and that that may continue to the latest ages of time, is the fervent prayer of all British America,’

[NOTE D.]--August, 1774., Instructions for the Deputies

Instructions for the Deputies appointed to meet in General Congress on the Part of this Colony.

The unhappy disputes between Great Britain and her American colonies, which began about the third year of the reign of his present Majesty, and since, continually increasing, have proceeded to lengths so dangerous and alarming, as to excite just apprehensions in the minds of his Majesty’s faithful subjects of this colony, that they are in danger of being deprived of their natural, ancient, constitutional, and chartered rights, have compelled them to take the same into their most serious consideration; and, being deprived of their usual and accustomed mode of making known their grievances, have appointed us their representatives, to consider what is proper to be done in this dangerous crisis of American affairs. It being our opinion that the united wisdom of North America should be collected in a general congress of all the colonies, we have appointed the Honorable Peyton Randolph, Richard Henry Lee, George Washington, Patrick Henry, Richard Bland, Benjamin Harrison, and Edmund Pendleton, Esquires, deputies to represent this colony in the said Congress, to be held at Philadelphia, on the first Monday in September next.

And that they may be the better informed of our sentiments, touching the conduct we wish them to observe on this important occasion, we desire that they will express, in the first place, our faith and true allegiance to his Majesty, King George the Third, our lawful and rightful sovereign; and that we are determined, with our lives and fortunes, to support him in the legal exercise of all his just rights and prerogatives. And, however misrepresented, we sincerely approve of a constitutional connection with Great Britain, and wish, most ardently, a return of that intercourse of affection and commercial connection, that formerly united both countries, which can only be effected by a removal of those causes of discontent, which have of late unhappily divided us.

It cannot admit of a doubt, but that British subjects in America are entitled to the same rights and privileges, as their fellow subjects possess in Britain; and therefore, that the power assumed by the British Parliament, to bind America by their statutes, in all cases whatsoever, is unconstitutional, and the source of these unhappy differences.

The end of government would be defeated by the British Parliament exercising a power over the lives, the property, and the liberty of American subjects; who are not, and, from their local circumstances, cannot be, there represented. Of this nature, we consider the several acts of Parliament, for raising a revenue in America, for extending the jurisdiction of the courts of Admiralty, for seizing American subjects, and transporting them to Britain, to be tried for crimes committed in America, and the several late oppressive acts respecting the town of Boston and Province of the Massachusetts Bay.

The original constitution of the American colonies possessing their assemblies with the sole right of directing their internal polity, it is absolutely destructive of the end of their institution, that their legislatures should be suspended, or prevented, by hasty dissolutions, from exercising their legislative powers.

Wanting the protection of Britain, we have long acquiesced in their acts of navigation, restrictive of our commerce, which we consider as an ample recompense for such protection; but as those acts derive their efficacy from that foundation alone, we have reason to expect they will be restrained, so as to produce the reasonable purposes of Britain, and not injurious to us.

To obtain redress of these grievances, without which the people of America can neither be safe, free, nor happy, they are willing to undergo the great inconvenience that will be derived to them, from stopping all imports whatsoever, from Great Britain, after the first day of November next, and also to cease exporting any commodity whatsoever, to the same place, after the tenth day of August, 1775. The earnest desire we have to make as quick and full payment as possible of our debts to Great Britain, and to avoid the heavy injury that would arise to this country from an earlier adoption of the non-exportation plan, after the people have already applied so much of their labor to the perfecting of the present crop, by which means they have been prevented from pursuing other methods of clothing and supporting their families, have rendered it necessary to restrain you in this article of non-exportation; but it is our desire, that you cordially co-operate with our sister colonies in General Congress, in such other just and proper methods as they, or the majority, shall deem necessary for the accomplishment of these valuable ends.

The proclamation issued by General Gage, in the government of the Province of the Massachusetts Bay, declaring it treason for the inhabitants of that province to assemble themselves to consider of their grievances, and form associations for their common conduct on the occasion, and requiring the civil magistrates and officers to apprehend all such persons, to be tried for their supposed offences, is the most alarming process that ever appeared in a British government; that the said General Gage hath, thereby, assumed, and taken upon himself, powers denied by the constitution to our legal sovereign; that he, not having condescended to disclose by what authority he exercises such extensive and unheard-of powers, we are at a loss to determine, whether he intends to justify himself as the representative of the King, or as the Commander in Chief of his Majesty’s forces in America. If he considers himself as acting in the character of his Majesty’s representative, we would remind him that the statute 25 Edward the Third has expressed and defined all treasonable offences, and that the legislature of Great Britain hath declared, that no offence shall be construed to be treason, but such as is pointed out by that statute, and that this was done to take out of the hands of tyrannical Kings, and of weak and wicked Ministers, that deadly weapon, which constructive treason had furnished them with, and which had drawn the blood of the best and honestest men in the kingdom; and that the King of Great Britain hath no right by his proclamation to subject his people to imprisonment, pains, and penalties.

That if the said General Gage conceives he is empowered to act in this manner, as the Commander in Chief of his Majesty’s forces in America, this odious and illegal proclamation must be considered as a plain and full declaration, that this despotic Viceroy will be bound by no law, nor regard the constitutional rights of his Majesty’s subjects, whenever they interfere with the plan he has formed for oppressing the good people of the Massachusetts Bay; and, therefore, that the executing, or attempting to execute, such proclamation, will justify resistance and reprisal.

[NOTE E.]--Monticello, November 1, 1778.--[Re: Crimes and Punishment]

Dear Sir,

I have got through the bill ‘for proportioning crimes and punishments in cases heretofore capital,’ and now enclose it to you with a request that you will be so good, as scrupulously to examine and correct it, that it may be presented to our committee, with as few defects as possible. In its style, I have aimed at accuracy, brevity, and simplicity, preserving, however, the very words of the established law, wherever their meaning had been sanctioned by judicial decisions, or rendered technical by usage. The same matter, if couched in the modern statutory language, with all its tautologies, redundancies, and circumlocutions, would have spread itself over many pages, and been unintelligible to those whom it most concerns. Indeed, I wished to exhibit a sample of reformation in the barbarous style, into which modern statutes have degenerated from their ancient simplicity. And I must pray you to be as watchful over what I have not said, as what is said; for the omissions of this bill have all their positive meaning. I have thought it better to drop, in silence, the laws we mean to discontinue, and let them be swept away by the general negative words of this, than to detail them in clauses of express repeal. By the side of the text I have written the note? I made, as I went along, for the benefit of my own memory. They may serve to draw your attention to questions, to which the expressions or the omissions of the text may give rise. The extracts from the Anglo-Saxon laws, the sources of the Common law, I wrote in their original, for my own satisfaction;* but I have added Latin, or liberal English translations. From the time of Canute to that of the Magna Charta, you know, the text of our statutes is preserved to us in Latin only, and some old French.

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

I have strictly observed the scale of punishments settled by the Committee, without being entirely satisfied with it. The _Lex talionis_, although a restitution of the Common law, to the simplicity of which we have generally found it so advantageous to return, will be revolting to the humanized feelings of modern times. An eye for an eye, and a hand for a hand, will exhibit spectacles in execution, whose moral effect would be questionable; and even the _membrum pro membro_ of Bracton, or the punishment of the offending member, although long authorized by our law, for the same offence in a slave, has, you know, been not long since repealed, in conformity with public sentiment. This needs reconsideration.

I have heard little of the proceedings of the Assembly, and do not expect to be with you till about the close of the month. In the mean time, present me respectfully to Mrs. Wythe, and accept assurances of the affectionate esteem and respect of, Dear Sir, Your friend and servant,

Th: Jefferson.

George Wythe, Esq.

_Bill for proportioning Crimes and Punishments, in Cases heretofore Capital_.

Whereas, it frequently happens that wicked and dissolute men, resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties, and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in its principal purpose, were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears, at the same time, equally deducible from the purposes of society, that a member thereof, committing an inferior injury, does not wholly forfeit the protection of his fellow-citizens, but, after suffering a punishment in proportion to his offence, is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange, in a proper scale, the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

And whereas, the reformation of offenders, though an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate, instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow-citizens, which also weaken the State, by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch as the experience of all ages and countries hath shown, that cruel and sanguinary laws defeat their own purpose, by engaging the benevolence of mankind to withhold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination, as well as their duty, to see the laws observed.

For rendering crimes and punishments, therefore, more proportionate to each other.

Be it enacted by the General Assembly, that no crime shall be henceforth punished by deprivation of life or limb,* except those hereinafter ordained to be so punished.

* 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.

*If a man do levy war** against the Commonwealth [_in the same_], or be adherent to the enemies of the Commonwealth [_within the same_],*** giving to them aid or comfort in the Commonwealth, or elsewhere, and thereof be convicted of open deed, by the evidence of two sufficient witnesses, or his own voluntary confession, the said cases, and no others,**** shall be adjudged treasons which extend to the Commonwealth, and the person so convicted shall suffer death by hanging,***** and shall forfeit his lands and goods to the Commonwealth.

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

** 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.

*** 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.

**** 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.

***** This implies ‘by the neck.’ See 2 Hawk. 444, notes _n.o._

If any person commit petty treason, or a husband murder his wife, a parent his child,* or a child his parent, he shall suffer death by hanging, and his body be delivered to anatomists to be dissected.

* By the stat. 21.Tac. 1. c. 27. and Act Ass. 1710, c. 12.
concealment by the mother of the death of a bastard child is
made murder. In justification of this, it is said, that
shame is a feeling which operates so strongly on the mind,
as frequently to induce the mother of such a child to murder
it, in order to conceal her disgrace. The act of
concealment, therefore, proves she was influenced by shame,
and that influence produces a presumption that she murdered
the child. The effect of this law, then, is, to make what,
in its nature, is only presumptive evidence of a murder,
conclusive of that fact. To this I answer, 1. So many
children die before, or soon after birth, that to presume
all those murdered who are found dead, is a presumption
which will lead us oftener wrong than right, and
consequently would shed more blood than it would save. 2. If
the child were born dead, the mother would naturally choose
rather to conceal it, in hopes of still keeping a good
character in the neighborhood. So that the act of
concealment is far from proving the guilt of murder on the
mother. 3. If shame be a powerful affection of the mind, is
not parental love also? Is it not the strongest affection
known? Is it not greater than even that of self-
preservation? While we draw presumptions from shame, one
affection of the mind, against the life of the prisoner,
should we not give some weight to presumptions from parental
love, an affection at least as strong in favor of life? If
concealment of the fact is a presumptive evidence of murder,
so strong as to overbalance all other evidence that may
possibly be produced to take away the presumption, why not
trust the force of this incontestable presumption to the
jury, who are, in a regular course, to hear presumptive, as
well as positive testimony? If the presumption, arising from
the act of concealment, may be destroyed by proof positive
or circumstantial to the contrary, why should the
legislature preclude that contrary proof? Objection. The
crime is difficult to prove, being usually committed in
secret. Answer. But circumstantial proof will do; for
example, marks of violence, the behavior, countenance, &c.
of the prisoner, &c. And if conclusive proof be difficult to
be obtained, shall we therefore fasten irremovably upon
equivocal proof? Can we change the nature of what is
contestable, and make it incontestable? Can we make that
conclusive which God and nature have made inconclusive?
Solon made no law against, parricide, supposing it
impossible any one could be guilty of it; and the Persians,
from the same opinion, adjudged all who killed their reputed
parents to be bastards: and although parental, be yet
stronger than filial affection, we admit saticide proved on
the most equivocal testimony, whilst they rejected all proof
of an act, certainly not more repugnant to nature, as of a
thing impossible, improvable. See Beccaria, § 31.

Whosoever committeth murder by poisoning, shall suffer death by poison.

Whosoever committeth murder by way of duel, shall suffer death by hanging; and if he were the challenger, his body, after death, shall be gibbeted.* He who removeth it from the gibbet, shall be guilty of a misdemeanor; and the officer shall see that it be replaced.

* 25 G. 2. c. 37.

Whosoever shall commit murder in any other way, shall suffer death by hanging.

And in all cases of petty treason and murder, one half of the lands and goods of the offender shall be forfeited to the next of kin to the person killed, and the other half descend and go to his own representatives. Save only, where one shall slay the challenger in a duel,* in which case, no part of his lands or goods shall be forfeited to the kindred of the party slain, but, instead thereof, a moiety shall go to the Commonwealth.

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

The same evidence* shall suffice, and order and course** of trial be observed in cases of petty treason, as in those of other*** murders.

* Quære, 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
quære, Lord Coke being contra, whose opinion it is ever
dangerous to neglect.

** 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.

*** 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.

Whosoever shall be guilty of manslaughter,* shall, for the first offence, be condemned to hard labor** for seven years, in the public works, shall forfeit one half of his lands and goods to the next of kin to the person slain; the other half to be sequestered during such term, in the hands and to the use of the Commonwealth, allowing a reasonable part of the profits for the support of his family. The second offence shall be deemed murder.

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

** 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.

And where persons, meaning to commit a trespass* only, or larceny, or other unlawful deed, and doing an act from which involuntary homicide hath ensued, have heretofore been adjudged guilty of manslaughter, or of murder, by transferring such their unlawful intention to an act much more penal than they could have in probable contemplation; no such case shall hereafter be deemed manslaughter, unless manslaughter was intended, nor murder, unless murder was intended.

* 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.

In other cases of homicide, the law will not add to the miseries of the party, by punishments or forfeitures.*

* 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 quasi-
punishment 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.

Whenever sentence of death shall have been pronounced against any person for treason or murder, execution shall be done on the next day but one after such sentence, unless it be Sunday, and then on the Monday following.*

* Beccaria, § 19; 25 G. 2. c. 37.

Whosoever shall be guilty of Rape,* Polygamy,** or Sodomy,*** with man or woman, shall be punished, if a man, by castration,**** if a woman, by cutting through the cartilage of her nose, a hole of one half inch in diameter at the least.

* 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, quære 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.Æliridi. 25. ‘Hi purgst
femme per forze forfait ad les membres.’ LI. Gul. Conq. 19.

** 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.

*** 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.
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 Ælfrid. 31. and 25 H. 8. c. 6. see
Beccaria, § 31. Montesq.

****Bracton, Fleta, &c.

But no one shall be punished for Polygamy, who shall have married after probable information of the death of his or her husband or wife, or after his or her husband or wife hath absented him or herself, so that no notice of his or her being alive hath reached such person for seven years together, or hath suffered the punishments before prescribed for rape, polygamy, or sodomy.

Whosoever, on purpose, and of malice forethought, shall maim* another, or shall disfigure him by cutting out or disabling the tongue, slitting or cutting off a nose, lip, or ear, branding, or otherwise, shall be maimed, or disfigured in like** sort: or if that cannot be for want of the same part, then as nearly as may be, in some other part of at least equal value and estimation, in the opinion of a jury, and moreover, shall forfeit one half of his lands and goods to the sufferer.

* 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.

** 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.
Ælfr. 19. 40.

Whosoever shall counterfeit* any coin, current by law within this Commonwealth, or any paper bills issued in the nature of money, or of certificates of loan on the credit of this Commonwealth, or of all or any of the United States of America, or any Inspectors’ notes for tobacco, or shall pass any such counterfeited coin, paper, bills, or notes, knowing them to be counterfeit; or, for the sake of lucre shall diminish,** case, or wash any such coin, shall be condemned to hard labor six years in the public works, and shall forfeit all his lands and goods to the Commonwealth.