Chapter XI: Appendix: Note a (3)

The quantity of fine silver which shall constitute the Unit, being settled, and the proportion of the value of gold to that of silver; a table should be formed from the assay before suggested, classing the several foreign coins according to their fineness, declaring the worth of a pennyweight or grain in each class, and that they shall be lawful tenders at those rates, if not clipped or otherwise diminished; and, where diminished, offering their value for them at the mint, deducting the expense of re-coinage. Here the Legislatures should co-operate with Congress, in providing that no money be received or paid at their treasuries, or by any of their officers, or any bank, but on actual weight; in making it criminal, in a high degree, to diminish their own coins, and, in some smaller degree, to offer them in payment when diminished.

That this subject may be properly prepared, and in readiness for Congress to take up at their meeting in November, something must now be done. The present session drawing to a close, they probably would not choose to enter far into this undertaking themselves. The Committee of the States, however, during the recess, will have time to digest it thoroughly, if Congress will fix some general principles for their government. Suppose they be instructed,

To appoint proper persons to assay and examine, with the utmost accuracy practicable, the Spanish milled dollars of different dates, in circulation with us.

To assay and examine, in like manner, the fineness of all the other coins which may be found in circulation within these States.

To report to the Committee the result of these assays, by them to be laid before Congress.

To appoint, also, proper persons to enquire what are the proportions between the values of fine gold, and fine silver, at the markets of the several countries with which we are, or probably may be, connected in commerce; and what would be a proper proportion here, having regard to the average of their values at those markets, and to other circumstances, and to report the same to the Committee, by them to be laid before Congress.

To prepare an Ordinance for establishing the Unit of Money within these States; for subdividing it; and for striking coins of gold, silver, and copper, on the following principles:

That the Money Unit of these States shall be equal in value to a Spanish milled dollar containing so much fine silver as the assay, before directed, shall show to be contained, on an average, in dollars of the several dates in circulation with us.

That this Unit shall be divided into tenths and hundredths; that there shall be a coin of silver of the value of a Unit; one other of the same metal, of the value of one-tenth of a Unit; one other of copper, of the value of the hundredth of a Unit.

That there shall be a coin of gold of the value of ten Units, according to the report before directed, and the judgment of the Committee thereon.

That the alloy of the said coins of gold and silver, shall be equal in weight to one-eleventh part of the fine metal.

That there be proper devices for these coins.

That measures be proposed for preventing their diminution, and also their currency, and that of any others, when diminished.

That the several foreign coins be described and classed in the said Ordinance, the fineness of each class stated, and its value by weight estimated in Units and decimal parts of Units.

And that the said draught of an Ordinance be reported to Congress at their next meeting, for their consideration and determination.

_Supplementary Explanations._

The preceding notes having been submitted to the consideration of the Financier, he favored me with his opinion and observations on them, which render necessary the following supplementary explanations.

I observed, in the preceding notes, that the true proportion of value between gold and silver was a mercantile problem altogether, and that, perhaps, fifteen for one, might be found an eligible proportion. The Financier is so good as to inform me, that this would be higher than the market would justify. Confident of his better information on this subject, I recede from that idea.[76]

He also informs me, that the several coins, in circulation among us, have been already assayed with accuracy, and the result published in a work on that subject. The assay of Sir Isaac Newton had superseded, in my mind, the necessity of this operation as to the older coins, which were the subject of his examination. This later work, with equal reason, may be considered as saving the same trouble as to the latter coins.

So far, then, I accede to the opinions of the Financier. On the other hand, he seems to concur with me, in thinking his smallest fractional division too minute for a Unit, and, therefore, proposes to transfer that denomination to his largest silver coin, containing 1000 of the units first proposed, and worth about 4s. 2d. lawful, or 25-36 of a Dollar. The only question then remaining between us is, whether the Dollar, or this coin, be best for the Unit. We both agree that _the ease of adoption with the people_, is the thing to be aimed at.

1. As to the Dollar, events have overtaken and superseded the question. It is no longer a doubt whether the people can adopt it with ease; they have adopted it, and will have to be turned out of that, into another tract of calculation, if another Unit be assumed. They have now two Units, which they use with equal facility, viz., the Pound of their respective State, and the Dollar. The first of these is peculiar to each State: the second, happily, common to all. In each State, the people have an easy rule of converting the pound of their State into dollars, or dollars into pounds; and this is enough for them, without knowing how this may be done in every State of the Union. Such of them as live near enough the borders of their State to have dealings with their neighbors, learn also the rule of their neighbors: thus, in Virginia and the Eastern States, where the dollar is 6s. or 3-10 of a pound, to turn pounds into dollars, they multiply by 10 and divide by 3. To turn dollars into pounds, they multiply by 3, and divide by 10. Those in Virginia who live near to Carolina, where the dollar is 8s. or 4-10 of a pound, learn the operation of that State, which is a multiplication by 4, and division by 10, _et e converso_. Those who live near Maryland, where the dollar is 7s. 6d. or 3-8 of a pound, multiply by 3, and divide by 8, _et e converso_. All these operations are easy, and have been found, by experience, not too much for the arithmetic of the people, when they have occasion to convert their old Unit into dollars, or the reverse.

2. As to the Unit of the Financier; in the States where the dollars is 3-10 of a pound, this Unit will be 5-24. Its conversion into the pound then, will be by a multiplication of 5, and a division by 24. In the States where the dollar is 3-8 of a pound, this Unit will be 25-96 of a pound, and the operation must be to multiply by 25, and divide by 96, _et e converso_. Where the dollar is 4-10 of a pound, this Unit will be 5-18. The simplicity of the fraction, and of course the facility of conversion and reconversion, is therefore against this Unit, and in favor of the dollar, in every instance. The only advantage it has over the dollar, is, that it will in every case express our farthing without a remainder; whereas, though the dollar and its decimals will do this in many cases, it will not in all. But, even in these, by extending your notation one figure further, to wit, to thousands, you approximate to perfect accuracy within less than the two-thousandth part of a dollar; an atom in money which every one would neglect. Against this single inconvenience, the other advantages of the dollar are more than sufficient to preponderate. This Unit will present to the people a new coin, and whether they endeavor to estimate its value by comparing it with a Pound, or with a Dollar, the Units they now possess, they will find the fraction very compound, and of course less accommodated to their comprehension and habits than the dollar. Indeed the probability is, that they could never be led to compute in it generally.

The Financier supposes that the 1-100 part of a dollar is not sufficiently small, where the poor are purchasers or vendors. If it is not, make a smaller coin. But I suspect that it is small enough. Let us examine facts, in countries where we are acquainted with them. In Virginia, where our towns are few, small, and of course their demand for necessaries very limited, we have never yet been able to introduce a copper coin at all. The smallest coin which anybody will receive there, is the half-bit, or 1-20 of a dollar. In those States where the towns are larger and more populous, a more habitual barter of small wants, has called for a copper coin of 1-90, 1-96, or 1-108 of a dollar. In England, where the towns are many and populous, and where ages of experience have matured the conveniences of intercourse, they have found that some wants may be supplied for a farthing, or 1-208 of a dollar, and they have accommodated a coin to this want. This business is evidently progressive. In Virginia, we are far behind. In some other States, they are further advanced, to wit, to the appreciation of 1-90, 1-96, 1-108 of a dollar. To this most advanced state, then, I accommodated my smallest coin in the decimal arrangement, as _a money of payment_, corresponding with the _money of account_. I have no doubt the time will come when a smaller coin will be called for. When that comes, let it be made. It will probably be the half of the copper I suppose, that is to say, 5-1000 or .005 of a dollar, this being very nearly the farthing of England. But it will be time enough to make it, when the people shall be ready to receive it.

My proposition then, is, that our notation of money shall be decimal, descending _ad libitum_ of the person noting; that the Unit of this notation shall be a Dollar; that coins shall be accommodated to it from ten dollars to the hundredth of a dollar and that, to set this on foot, the resolutions be adopted which were proposed in the notes, only substituting _an enquiry into the fineness of the coins_ in lieu of _an assay of them_.

[NOTE G.]

I have sometimes asked myself, whether my country is the better for my having lived at all? I do not know that it is. I have been the instrument of doing the following things; but they would have been done by others; some of them, perhaps, a little better.

The Rivanna had never been used for navigation; scarcely an empty canoe had ever passed down it. Soon after I came of age, I examined its obstructions, set on foot a subscription for removing them, got an Act of Assembly passed, and the thing effected, so as to be used completely and fully for carrying down all our produce.

The Declaration of Independence.

I proposed the demolition of the church establishment, and the freedom of religion. It could only be done by degrees; to wit, the Act of 1776, c. 2. exempted dissenters from contributions to the Church, and left the Church clergy to be supported by voluntary contributions of their own sect; was continued from year to year, and made perpetual 1779, c. 36. I prepared the act for religious freedom in 1777, as part of the revisal, which was not reported to the Assembly till 1779, and that particular law not passed till 1785, and then by the efforts of Mr. Madison.

The act putting an end to entails.

The act prohibiting the importation of slaves.

The act concerning citizens, and establishing the natural right of man to expatriate himself, at will.

The act changing the course of descents, and giving the inheritance to all the children, &c., equally, I drew as part of the revisal.

The act for apportioning crimes and punishments, part of the same work, I drew. When proposed to the legislature, by Mr. Madison, in 1785, it failed by a single vote. G. K. Taylor afterwards, in 1796, proposed the same subject; avoiding the adoption of any part of the diction of mine, the text of which had been studiously drawn in the technical terms of the law, so as to give no occasion for new questions by new expressions. When I drew mine, public labor was thought the best punishment to be substituted for death. But, while I was in France, I heard of a society in England, who had successfully introduced solitary confinement, and saw the drawing of a prison at Lyons, in France, formed on the idea of solitary confinement. And, being applied to by the Governor of Virginia for the plan of a Capitol and Prison, I sent him the Lyons plan, accompanying it with a drawing on a smaller scale, better adapted to our use. This was in June, 1786. Mr. Taylor very judiciously adopted this idea, (which had now been acted on in Philadelphia, probably from the English model) and substituted labor in confinement, to the public labor proposed by the Committee of revisal; which themselves would have done, had they been to act on the subject again. The public mind was ripe for this in 1796, when Mr. Taylor proposed it, and ripened chiefly by the experiment in Philadelphia; whereas, in 1785, when it had been proposed to our Assembly, they were not quite ripe for it.

In 1789 and 1790, I had a great number of olive plants, of the best kind, sent from Marseilles to Charleston, for South Carolina and Georgia. They were planted, and are flourishing; and, though not yet multiplied, they will be the germ of that cultivation in those States.

In 1790, I got a cask of heavy upland rice, from the river Denbigh, in Africa, about lat. 9° 30' North, which I sent to Charleston, in hopes it might supersede the culture of the wet rice, which renders South Carolina and Georgia so pestilential through the summer. It was divided, and a part sent to Georgia. I know not whether it has been attended to in South Carolina; but it has spread in the upper parts of Georgia, so as to have become almost general, and is highly prized. Perhaps it may answer in Tennessee and Kentucky. The greatest service which can be rendered any country is, to add an useful plant to its culture; especially, a bread grain; next in value to bread is oil.

Whether the act for the more general diffusion of knowledge will ever be carried into complete effect, I know not. It was received by the legislature with great enthusiasm at first; and a small effort was made in 1796, by the act to establish public schools, to carry a part of it into effect, viz., that for the establishment of free English schools; but the option given to the courts has defeated the intention of the act.[77]

[NOTE H.]

New York, October 13, 1789.

SIR,

In the selection of characters to fill the important offices of Government, in the United States, I was naturally led to contemplate the talents and dispositions which I knew you to possess and entertain for the service of your country; and without being able to consult your inclination, or to derive any knowledge of your intention from your letters, either to myself or to any other of your friends, I was determined, as well by motives of private regard, as a conviction of public propriety, to nominate you for the Department of State, which, under its present organization, involves many of the most interesting objects of the Executive authority. But grateful as your acceptance of this commission would be to me, I am, at the same time, desirous to accommodate your wishes, and I have, therefore, forborne to nominate your successor at the court of Versailles, until I should be informed of your determination.

Being on the eve of a journey through the Eastern States, with a view to observe the situation of the country, and in a hope of perfectly re-establishing my health, which a series of indispositions has much impaired, I have deemed it proper to make this communication of your appointment, in order that you might lose no time, should it be your _wish_ to visit Virginia during the recess of Congress, which will probably be the most convenient season, both as it may respect your private concerns and the public service.

Unwilling, as I am, to interfere in the direction of your choice of assistants, I shall only take the liberty of observing to you, that from warm recommendations which I have received in behalf of Roger Alden, Esq., assistant Secretary to the late Congress, I have placed all the papers thereunto belonging, under his care. Those papers which more properly appertain to the office of Foreign Affairs, are under the superintendence of Mr. Jay, who has been so obliging as to continue his good offices, and they are in the immediate charge of Mr. Remsen.

With sentiments of very great esteem and regard,

I have the honor to be, sir,
Your most obedient servant,
GEORGE WASHINGTON.

The Honorable Thomas Jefferson.

I take this occasion to acknowledge the receipt of your several favors, of the 4th and 5th of December of the last, and 10th of May of the present year, and to thank you for the communications therein.

G. W.

New York, November 30, 1789.

DEAR SIR,

You will perceive by the enclosed letter, (which was left for you at the office of Foreign Affairs, when I made a journey to the Eastern States,) the motives on which I acted with regard to yourself, and the occasion of my explaining them at that early period.

Having now reason to hope, from Mr. Trumbull's report, that you will be arrived at Norfolk before this time, (on which event I would most cordially congratulate you,) and having a safe conveyance by Mr. Griffin, I forward your commission to Virginia; with a request to be made acquainted with your sentiments as soon as you shall find it convenient to communicate them to me.

With sentiments of very great esteem and regard,

I am, dear sir,
Your most obedient humble servant,
GEORGE WASHINGTON.

The Honorable Thomas Jefferson.

FOOTNOTES:

[24] 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.

[25] 14. G. 3.

[26] 14. G. 3.

[27] 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.

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

[29] This takes away the punishment of cutting off the hand
of a person striking an other, 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 hwæther he lif age de nage: si
quis in regis domo pugnet, perdat omnem suam haereditatem,
et in regis sit arbitrio, possideat vitam an non possideat.
Ll. Inae. 6. Gif hwa on Cyninges healle gefeohte, oththe his
wæpne gebrede, and hine mon gefo, sy thæt on Cyninges dome
swa death, swa lif, swa he him forgyfan wille: si quis in
aula regia pugnet, vel arma sua extrahat et capiatur, sit
in regis arbitrio tam mors quam vita, sicut ei condonare
voluerit. Ll. Alfr. 7. Gif hwa on Cyninges hirede gefeohte
tholige thæt lifes, buton se Cyning him gearian wille:
si quis in regia dimicat, perdat vitam, nisi rex hoc illi
condonare velit. Ll. Cnuti. 56. 4. Bl. 125.

[30] 25. E. 3. st. 5. c. 2. 7. W. 3. c. 3. § 2.

[31] 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. 1 H. 6. 5.

[32] 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.

[33] The stat. 25. E. 3. directs all other cases of treasons
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."
Quære, 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.

[34] This implies "by the neck." See 2 Hawk. 544. notes n. o.

[35] By the stat. 21. Jac. 1. c. 27. and Act Ass. 1170. 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
that 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, unprovable. See Beccaria, § 31.

[36] 25. G. 2. c. 37.

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

[38] Quære, if these words may not be omitted? By the Common
law, one witness in treason was sufficient. Foster 233.
Plowd. 8. a. Mirror e. 3. § 34. Waterhouse on Fortese. de
laud. 252. Carth. 144. per. Holt. But Lord Coke, contra 3
inst. 26. The stat. 1. E. 6. c. 12. & 5. E. 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.

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

[40] 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.

[41] Manslaughter is punishable at law, by burning in the
hands, and forfeiture of chattels.

[42] It is best, in this act, to lay down principles only,
in order that it may not forever be undergoing change; and,
to carry into effect the minuter parts of it, frame a bill
"for the employment and government of felons, or malefactors,
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
p. 50. for some good hints. Fugitives might, in such a
bill, be obliged to work two days for every one they absent
themselves.

[43] 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. c. contra.

[44] 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 animo furandi, but perhaps
veneris causa, &c. Bracton says, "si quis furem nocturnum
occident ita demum impune foret, si parcere ei sine periculo
suo non potuit, si autem potuit, aliter erit. Item erit
si quis hamsokne quae dicitur invasio domus contra pacem
domini regis in domo sua se defenderit, et invasor occisus
fuerit; impersecutus et insultus remanebit, si ille quem
invasit aliter se defendere non potuit; dicitur enim quod
non est dignus habere pacem qui non vult observare eam."
L. 3. c. 23. § 3. "Qui latronem occiderit, non tenetur,
nocturnum vel diurnum, si aliter periculum evadere non
possit; tenetur tamen si possit. Item non tenetur si per
infortunium, et non animo et voluntate occidendi, nec 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
from 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.

[45] Beccaria. § 19. 25. G. 2. c. 37.

[46] 13. E. 1. e. 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. c. 28.
§ 1. says the punishment of rape is "amissio membrorum,
ut sit membrum pro membro, 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 condemnare, sed non sine errore,
eo quod id judicium nisi in corruptione virginum tantum
competebat; nam pro virginitatis corruptione solebant abscidi
et merito judicari, ut sic pro membro quod abstulit, membrum
per quod deliquit amitteret, viz., testiculos, qui calorem
stupri induxerunt," &c. Fleta, L. 1. c. 40. § 4. "Gif theow
man theowne to nydhed genyde, gabte mid his eowende:" "Si
servus servam ad stuprum coegerit, compenset hoc virga sua
virili. Si quis puellam," &c. Ll. Aelfridi. 25. "Hi purgist
femme per forze forfait ad les membres." Ll. Gul. conq. 19.
In Dyer, 305, 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. e. 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.
e. 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.

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

[48] 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, "note
that Sodomy is with mankind." But Finch's L. B. 3. c. 24.
"Sodomiary 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, "percorantes et Sodomitae 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 civili, 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. Ll. Aelfrid. 31. and 25. H. 8. c. 6. see
Beccaria. § 31. Montesq.

[49] Bracton, Fleta, &c.

[50] 22. 23. Car. 2. c. l. Maiming was felony at the Common
law. Britton, c. 25. "Mahemium autem dici poteri, aubi
aliquis in aliqua parte sui corparis laesionem acceperit,
per quam affectus sit inutilis ad pugnandum: ut si manus
amputetur, vel pes, oculus privetur, vel scerda de osse
capitis la veter, vel si quis dentes praecisores amiserit,
vel castratus fuerit, et talis pro mahemiato poterit
adjudicari." Fleta L. 1. c. 40. "Et volons que nul maheme
ne soit tenus forsque de membre tollet dount home est plus
feble a combatre, sicome del oyl, ou de la mayn, ou del pie,
ou de la tete debruse, ou de les dentz devant." Britton, c.
25. For further definitions, see Bracton, 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." Nor does the Common law prescribe the same
punishment for disfiguring, as for maiming.

[51] The punishment was by retaliation. "Et come ascun appele
serra de tele felonie atteint et attende jugement, si soit
le judgment tiel que il perde autriel membre come il avera
tollet al pleintyfe. Et sy la pleynte soi faite de femme que
avera tollet a home ses membres, en tiel cas perdra la femme
la une meyn par jugement, come le membre dount ele axera
trespasse." Britton, c. 25. Fleta, B. 1. c. 40. Ll. Aelfr.
19. 40.

[52] 25. E. 3. st. 5. c. 2. 5. El. c. 11. 18. El. c. 1. 8.
9. W. 3. c. 26. 15. 16. G. 2. c. 28. 7. Ann. c. 25. By the
laws of Aethelstan and Canute, this was punished by cutting
off the hand. "Gif se mynetere ful wurthe slea man tha hand
of, the he that ful mid worthe and sette uppon tha mynet
smiththan." In English characters and words "if the minter
foul [criminal] wert, slay the hand off, that he the foul
[crime] with wrought, and set upon the mint-smithery." Ll.
Aethelst. 14. "Et si quis praeter hanc, falsam fecerit,
perdat manum quacum falsam confecit." Ll. Cnuti. 8. It had
been death by the Ll. Aethelredi sub fine. By those of II.
I. "si quis cum falso denario inventus fuerit--fiat justitia
mea, saltem de dextro puguo et de testiculis." Anno 1108.
Operae pretium vero est audire quam severus rex fuerit in
pravos. Monetarios enim fere omnes totius Angliae 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 aluid genus criminis quod sub nomine falsi
continetur, et tangit coronam domini regis, et ultimum
inducit supplicium, sicut de illis qui falsam fabricant
monetam, et qui de re non reproba, faciunt reprobam; sicut
sunt retonsores denariorum." Bract. L. 3. c. § 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 merchandize, 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? l. H. P. C.
229.

[53] 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 making, is
"counterfeiting."

[54] 43. L. c. 13. confined to four counties. 22. 23. Car. 2.
c. 7. 9. G. 1. c. 22. 9. G. 3. c. 29.

[55] Arson was a felony at Common law--3. Inst. 66; punished
by a fine, Ll. Aethelst. 6. But Ll. Cnuti, 61. make it a
"scelus inexpiable." "Hus brec and bærnet and open thyfth
æberemorth and hlaford swice æfter woruld laga is botleds."
Word for word, "house break and burnt, and open theft, and
manifest murther, and lord-treachery, afterworld's law is
bootless." Bracton says it was punished by death. "Si quis
turbida seditione incendium fecerit nequiter et in felonia,
vel ob inimicitias, vel praedandi causa, capitali puniatur
poena vel senteutia." Bract. L. 3. 27. He defines it as
commissible by burning "aedes alienas." Ib. Britton, c.
9. "Ausi soit enquis de ceux que felonisement en temps de
pees cient autre _blees_ ou autre _mesons_ ars, et ceux que
serrount de ceo atteyntz, soient ars issint que eux soient
punys par mesme cele chose dount ilz pecherent." Fleta, L.
1. c. 37. is a copy of Bracton. The Mirror c. 1. § 8. says,
"Ardours sont que ardent citie, ville, maison home, maison
beast, ou auters chatelx, de lour felonie en temps de pace
pour haine ou vengeance." Again, c. 2. § 11. pointing out
the words of the appellor "jeo dise que Sebright, &c., entiel
meason ou _biens_ mist de feu." Coke 3. Inst. 67. says, "the
ancient authors extended this felony further than houses,
viz., to sacks of corn, waynes or carts of coal, wood or
other goods." He denies it as commissible, 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.
23. Car. 2. and 9. G. 1. are the principal statutes against
arson. They extend the offence beyond the Common law.

[56] 1. Ann. st. 2. c. 9. 12. Ann. c. 18. 4. G. I. c. 12. 26.
G. 2. c. 19.

[57] 11. 12. W. 3. c. 7.

[58] Robbery was a felony at Common law. 3 Inst. 68. "Scelus
inexpiable," by the Ll. Cnuti. 61. [See before in Arson.]
It was punished with death. Britt. c. 15, "de robbours et de
larouns et de semblables mesfesours, soit ausi ententivement
enquis--et tauntost soient ceux robbours juges a la mort."
Fleta says, "si quis convictus fuerit de bonis viri robbatis
vel asportatis ad sectam regis judicium capitale subibit." L.
1. c. 39. See also Bract. L. 3. c. 32. § 1.

[59] 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
House-breaking were called "Hamsockne diximus etiam de
pacis violatione et de immunitatibus domus, si quis hoc in
posterum fecerit ut perdat omne quod habet, et sit in regis
arbitrio utrum vitam habeat. Eac we quædon be mundbryce and
be ham socnum, sethe hit ofer this do thæt he dolie ealles
thæs the age, and sy on Cyninges dome hwæther he 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 king's doom whether he life owes [owns.] Ll. Eadmundi.
c. 6. and see Ll. Cnuti. 61. "hus brec," in notes on 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 debrusout 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 ecclesiae, etiam murorum, partarumve civitatis
aut burgi, ad feloniam aliquam perpetrandam. _Noctanter_
dico, recentiores secutus; 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 Bl. 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
them, 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 1.
H. P. C. 554. had denied it. Our bill must distinguish them
by different degrees of punishment.

[60] At the Common law, the offence of Housebreaking 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 Housebreaking, as nearly to bring
the offences together again. These are 23 H. 8. c. 1. 1.
E. 6. c. 12. 5 and 6 E. 6. c. 9. 3 and 4 W. M. c. 9. 39
El. c. 15. 10 and 11 W. 3 c. 23. 12 Ann. c. 7. See Barr.
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 Housebreaking
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.

[61] 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.

[62] The distinction between grand and petty larceny, is very
ancient. At first 8d. was the sum which constituted grand
larceny. Ll. Aethelst. c. 1. "Ne parcatur ulli furi, qui
furtum manutenens captus sit, supra 12. annos nato, et supra
8. denarios." Afterwards, in the same king's reign it was
raised to 12d. "non parcatur alicui furi ultra 12 denarios,
et ultra 12 annos nato--ut occidemus illum et capiamus omne
quod possidet, et imprimis sumamus rei furto ablatae pretium
ab haerede, ac dividatur postea reliquum in duas partes,
una pars uxori, si munda, et facinoris conscia non sit; et
residuum in duo, dimidium capiat rex, dimidium societas." Ll.
Aethelst. Wilkins, p. 65.

[63] Ll. Inae. c. 7. "Si quis furetur ita ut uxor ejus et
infans ipsius nesciant, solvat 60. solidos poenae loco. Si
autem furetur testantibus omnibus haeredibus suis, _abeant
omnes in servitutem_." Ina was king of the West-Saxons,
and began to reign A. C. 688. After the union of the
Heptarchy, i. e. temp. Aethelst. inter 924 and 940, we find
it punishable with death as above. So it was inter 1017 and
1035, i. e. temp. Cnuti. Ll. Cnuti 61. cited in notes on
Arson. In the time of William the conqueror, it seems to
have been made punishable by fine only. Ll. Gul. conq. apud
Wilk. p. 218, 220. This commutation, however, was taken away
by Ll. H. 1. anno 1108. "Si quis in furto vel latrocinio
deprehensus fuisset, suspenderetur; sublata wirgildorum, id
est, pecuniarae redemptionis lege." Larceny is the felonious
taking and carrying away of the personal goods of another. 1.
As to the taking, the 3. 4. W. 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 H. 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 quære, 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 reality.
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, quære, if it would
not too much enlarge the field of Criminal law? The same may
be questioned of 9 G. 1. c. 22. 13 Car. 2. c. 10. 10 G. 2. c.
32. 5 G. 3. c. 14. 22 and 23 Car. 2. c. 25. 37 E. 3. c. 19.
making it felony to steal animals feræ naturæ.

[64] 2 G. 2. c. 25 § 3. 7 G. 3. c. 50.

[65] 3. 4. W. M. c. 9. § 4. 5 Ann. c. 31. § 5. 4 G. 1. c. 11.
§ 1.

[66] 1 E. 2.

[67] 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, amplius (quam causa pro qua recepti sunt exposeit)
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. Coron. 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 mortell, car
cel usage n'est garrant per nul ley, ne in nul part est use
forsque in cest realme, et en France, eins [mais] est leu
garrantie de ceo faire per la ley de nature." 2 Inst. 589.
The stat. 1. E. 2. de fraugentibus prisonam, restrained the
judgment of life and limb for prison breaking, 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 says
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.

[68] Gif wiccan owwe wigleras nansworan, owwe morthwyrhtan
owwe fule afylede æbere horcwenan ahwhar on lande wurthan
agytene, thonne fyrsie man of earde and clænsie tha 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,
anywhere in the land were gotten, then force them off earth,
and cleanse the nation, or in earth forth-fare them withal,
buton they beseech, and deeply better. Ll. Ed. et Guthr.
c. 11. "Sagae, mulieres barbara, factitantes sacrificia,
aut pestiferi, si cui mortem intulerint, neque id inficiari
poterint, capitis poena esto." Ll. Aethelst. c. 6. apud
Lambard. Ll. Aelfr. 30. Ll. Cnuti. c. 4. "Mesme cel jugement
(d'etrears) eyent sorcers, et sorceresses, &c. ut supra."
Fleta ut 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.

[69] 1 Ann. c. 9. § 2.

[70] As every treason includes within it a misprision
of treason, so every felony includes a misprision, or
misdemeanor. 1 Hale P. C. 652. 708. "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.

[71] E. 1. c. 12.