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Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson, Volume 1
[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.
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.
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.
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 selfpreservation? 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.
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.
The same evidence shall suffice, and order and course of trial be observed in cases of petty treason, as in those of other murders.
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.
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.
In other cases of homicide, the law will not add to the miseries of the party, by punishments or forfeitures.
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.
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.
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.
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.
Whosoever committeth Arson, shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers threefold.
If any person shall, within this Commonwealth, or, being a citizen thereof, shall without the same, wilfully destroy, or run away with any sea-vessel, or goods laden on board thereof, or plunder or pilfer any wreck, he shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers threefold.
Whosoever committeth Robbery, shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured.
Whatsoever act, if committed on any mansion-house, would be deemed Burglary, shall be Burglary, if committed on any other house; and he who is guilty of Burglary, shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured.
Whatsoever act, if committed in the night time, shall constitute the crime of Burglary, shall, if committed in the day, be deemed House-breaking; and whosoever is guilty thereof, shall be condemned to hard labor three years in the public works, and shall make reparation to the persons injured.
Whosoever shall be guilty of Horse-stealing, shall be condemned to hard labor three years in the public works, and shall make reparation to the person injured.
Grand Larceny shall be where the goods stolen are of the value of five dollars; and whosoever shall be guilty thereof, shall be forthwith put in the pillory for one half hour, shall be condemned to hard labor two years in the public works, and shall make reparation to the person injured.
Petty Larceny shall be, where the goods stolen are of less value than five dollars; and whosoever shall be guilty thereof, shall be forthwith put in the pillory for a quarter of an hour, shall be condemned to hard labor one year in the public works, and shall make reparation to the person injured.
Robbery or larceny of bonds, bills obligatory, bills of exchange, or promissory notes for the payment of money or tobacco, lottery tickets, 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 Inspectors’ notes for tobacco, shall be punished in the same manner as robbery,or larceny of the money or tobacco due on or represented by such papers.
Buyers and receivers of goods taken by way of robbery or larceny, knowing them to have been so taken, shall be deemed accessaries to such robbery or larceny after the fact.
Prison breakers, also, shall be deemed accessaries after the fact, to traitors or felons whom they enlarge from prison.
All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, enchantment, or sorcery, or by pretended prophecies, shall be punished by ducking and whipping, at the discretion of a jury, not, exceeding fifteen stripes.
If the principal offenders be fled, or secreted from justice, in any case not touching life or member, the accessaries may, notwithstanding, be prosecuted as if their principal were convicted.
If any offender stand mute of obstinacy, or challenge preremp-torily more of the jurors than by law he may, being first warned of the consequence thereof, the court shall proceed as if he had confessed the charge,
Pardon and privilege of clergy shall henceforth be abolished, that none may be induced to injure through hope of impunity. But if the verdict be against the defendant, and the court, before whom the offence is heard and determined, shall doubt that it may be untrue for defect of testimony, or other cause, they may direct a new trial to be had.
No attainder shall work corruption of blood in any case.
In all cases of forfeiture, the widow’s dower shall be saved to her, during her title thereto; after which it shall be disposed of as if no such saving had been.
The aid of Counsel, and examination of their witnesses on oath, shall be allowed to defendants in criminal prosecutions.
Slaves guilty of any offence punishable in others by labor in the public works, shall be transported to such parts in the West Indies, South America, or Africa, as the Governor shall direct, there to be continued in slavery.
[NOTE F.]—Coinage for the United States
On the Establishment of a Money Unit, and of a Coinage for the United States.
In fixing the Unit of Money, these circumstances are of principal importance.
I. That it be of convenient size to be applied as a measure to the common money transactions of life.
II. That its parts and multiplies be in an easy proportion to each other, so as to facilitate the money arithmetic;
III. That the Unit and its parts, or divisions, be so nearly of the value of some of the known coins, as that they may be of easy adoption for the people.
The Spanish Dollar seems to fulfil all these conditions.
I. Taking into our view all money transactions, great and small, I question if a common measure of more convenient size than the Dollar could be proposed. The value of 100, 1000, 10,000 dollars is well estimated by the mind; so is that of the tenth or the hundredth of a dollar. Few transactions are above or below these limits. The expediency of attending to the size of the Money Unit will be evident to any one who will consider how inconvenient it would be to a manufacturer or merchant, if instead of the yard for measuring cloth, either the inch or the mile had been made the Unit of Measure.
II. The most easy ratio of multiplication and division is that by ten. Every one knows the facility of Decimal Arithmetic. Every one remembers, that, when learning Money-Arithmetic, he used to be puzzled with adding the farthings, taking out the fours and carrying them on; adding the pence, taking out the twelves and carrying them on; adding the shillings, taking out the twenties and carrying them on; but when he came to the pounds, where he had only tens to carry forward, it was easy and free from error. The bulk of mankind are school-boys through life. These little perplexities are always great to them. And even mathematical heads feel the relief of an easier, substituted for a more difficult process. Foreigners, too, who trade or travel among us, will find a great facility in understanding our coins and accounts from this ratio of subdivision. Those who have had occasion to convert the Livres, sols, and deniers of the French; the Gilders, stivers, and frenings of the Dutch; the Pounds, shillings, pence, and farthings of these several States, into each other, can judge how much they would have been aided, had their several subdivisions been in a decimal ratio. Certainly, in all cases, where we are free to choose between easy and difficult modes of operation, it is most rational to choose the easy. The Financier, therefore, in his report, well proposes that our Coins should be in decimal proportions to one another. If we adopt the Dollar for our Unit, we should strike four coins, one of gold, two of silver, and one of copper, viz.
1. A golden piece, equal in value to ten dollars:
2. The Unit or Dollar itself, of silver:
3. The tenth of a Dollar, of silver also:
4. The hundreth of a Dollar, of copper.
Compare the arithmetical operations, on the same sum of money expressed in this form, and expressed in the pound sterling and its divisions.
A bare inspection of the above operations, will evince the labor which is occasioned by subdividing the Unit into 20ths, 240ths, and 960ths, as the English do, and as we have done; and the ease of subdivision in a decimal ratio. The same difference arises in making payment. An Englishman, to pay £8 13s. 11d. 1/2qrs. must find, by calculation, what combination of the coins of his country will pay this sum; but an American, having the same sum to pay, thus expressed $38.65, will know, by inspection only, that three golden pieces, eight units or dollars, six tenths, and five coppers, pay it precisely.
III. The third condition required is, that the Unit, its multiples, and subdivisions, coincide in value with some of the known coins so nearly, that the people may, by a quick reference in the mind, estimate their value. If this be not attended to, they will be very long in adopting the innovation, if ever they adopt it. Let us examine, in this point of view, each of the four coins proposed.
1. The golden piece will be 1/5 more than a half joe and 1/15 more than a double guinea. It will be readily estimated, then, by reference to either of them; but more readily and accurately as equal to ten dollars.
2. The Unit, or Dollar, is a known coin, and the most familiar of all to the minds of the people. It is already adopted from South to North; has identified our currency, and therefore happily offers itself as a Unit already introduced. Our public debt, our requisitions, and their apportionments, have given it actual and long possession of the place of Unit. The course of our commerce, too, will bring us more of this than of any other foreign coin, and therefore renders it more worthy of attention. I know of no Unit which can be proposed in competition with the Dollar, but the Pound. But what is the Pound? 1547 grains of fine silver in Georgia; 1289 grains in Virginia, Connecticut, Rhode Island, Massachusetts, and New Hampshire; 1031 grains in Maryland, Delaware, Pennsylvania, and New Jersey; 966 grains in North Carolina and New York. Which of these shall we adopt? To which State give that pre-eminence of which all are so jealous? And on which impose the difficulties of a new estimate of their corn, their cattle, and other commodities? Or shall we hang the pound sterling, as a common badge, about all their necks? This contains 1718 grains of pure silver. It is difficult to familiarize a new coin to the people; it is more difficult to familiarize them to a new coin with an old name. Happily, the Dollar is familiar to them all, and is already as much referred to for a measure of value, as their respective provincial pounds.
3. The tenth will be precisely the Spanish bit, or half pistereen. This is a coin perfectly familiar to us all. When we shall make a new coin, then, equal in value to this, it will be of ready estimate with the people.
4. The hundredth, or copper, will differ little from the copper of the four Eastern States, which is 1/108 of a dollar; still less from the penny of New York and North Carolina, which is 1/96 of a dollar; and somewhat more from the penny or copper of Jersey, Pennsylvania, Delaware, and Maryland, which is 1/90 of a dollar. It will be about the medium between the old and the new coppers of these States, and will therefore soon be substituted for them both. In Virginia, coppers have never been in use. It will be as easy, therefore, to introduce them there of one value as of another. The copper coin proposed, will be nearly equal to three fourths of their penny, which is the same with the penny lawful of the Eastern States.
A great deal of small change is useful in a State, and tends to reduce the price of small articles. Perhaps it would not be amiss to coin three, more pieces of silver, one of the value of five tenths, or half a dollar, one of the value of two tenths, which would be equal to the Spanish pistereen, and one of the value of five coppers, which would be equal to the Spanish half-bit. We should then have five silver coins, viz.
1. The Unit or Dollar:
2. The half dollar or five tenths:
3. The double tenth, equal to 2/10, or one fifth of a dollar, or to the pistereen:
4. The tenth, equal to a Spanish bit:
5. The five copper piece, equal to 5/100 or one twentieth of a dollar, or the half-bit.
The plan reported by the Financier is worthy of his sound judgment. It admits, however, of objection, in the size of the Unit. He proposes that this shall be the 1440th part of a dollar; so that it will require 1440 of his units to make the one before proposed. He was led to adopt this by a mathematical attention to our old currencies, all of which this Unit will measure without leaving a fraction. But as our object is to get rid of those currencies, the advantage derived from this coincidence will soon be past, whereas the inconveniences of this Unit will for ever remain, if they do not altogether prevent its introduction. It is defective in two of the three requisites of a Money Unit. 1. It is inconvenient in its application to the ordinary money transactions. 10,000 dollars will require eight figures to express them, to wit, 14,400,000 units. A horse or bullock of eighty dollars’ value, will require a notation of six figures, to wit, 115,200 units. As a money of account, this will be laborious, even when facilitated by the aid of decimal arithmetic: as a common measure of the value of property, it will be too minute to be comprehended by the people. The French are subjected to very laborious calculations, the Livre being their ordinary money of account, and this but between 1/5 and 1/6 of a dollar; but what will be our labors, should our money of account be 1/1440 of a dollar only? 2. It is neither equal, nor near to any of the known coins in value.
If we determine that a Dollar shall be our Unit, we must then say with precision what a Dollar is. This coin, struck at different times, of different weights and fineness, is of different values. Sir Isaac Newton’s assay and representation to the Lords of the Treasury, in 1717, of those which he examined, make their values as follows:
The Seville piece of eight . . . . 387 grains of pure silver
The Mexico piece of eight . . . . 385 1/2 ”
The Pillar piece of eight . . . . 385 3/4 ”
The new Seville piece of eight . . 308 7/10 ”
The Financier states the old Dollar as containing 376 grains of fine silver, and the new 365 grains. If the Dollars circulating among us be of every date equally, we should examine the quantity of pure metal in each, and from them form an average for our Unit. This is a work proper to be committed to mathematicians as well as merchants, and which should be decided on actual and accurate experiment.
The quantum of alloy is also to be decided. Some is necessary, to prevent the coin from wearing too fast; too much, fills our pockets with copper, instead of silver. The silver coin assayed by Sir Isaac Newton, varied from 1 1/2 to 76 pennyweights alloy, in the pound troy of mixed metal. The British standard has 18 dwt.; the Spanish coins assayed by Sir Isaac Newton, have from 18 to 19 1/2 dwt.; the new French crown has in fact 19 1/2, though by edict it should have 20 dwt., that is 1/12.
The taste of our countrymen will require, that their furniture plate should be as good as the British standard. Taste cannot be controlled by law. Let it then give the law, in a point which is indifferent to a certain degree. Let the Legislatures fix the alloy of furniture plate at 18 dwt., the British standard, and Congress that of their coin at one ounce in the pound, the French standard. This proportion has been found convenient for the alloy of gold coin, and it will simplify the system of our mint to alloy both metals in the same degree. The coin too, being the least pure, will be the less easily melted into plate. These reasons are light, indeed, and, of course, will only weigh, if no heavier ones can be opposed to them.
The proportion between the values of gold and silver is a mercantile problem altogether. It would be inaccurate to fix it by the popular exchanges of a half Joe for eight dollars, a Louis for four French crowns, or five Louis for twenty-three dollars. The first of these, would be to adopt the Spanish proportion between gold and silver; the second, the French; the third, a mere popular barter, wherein convenience is consulted more than accuracy. The legal proportion in Spain is 16 for 1; in England, 15 1/2 for 1; in France, 15 for 1. The Spaniards and English are found, in experience, to retain an over proportion of gold coins, and to lose their silver. The French have a greater proportion of silver. The difference at market has been on the decrease. The Financier states it at present, as at 141/2 for one. Just principles will lead us to disregard legal proportions altogether; to inquire into the market price of gold, in the several countries with which we shall principally be connected in commerce, and to take an average from them. Perhaps we might, with safety, lean to a proportion somewhat above par for gold, considering our neighborhood and commerce with the sources of the coins, and the tendency which the high price of gold in Spain has, to draw thither all that of their mines, leaving silver principally for our and other markets. It is not impossible that 15 for 1, may be found an eligible proportion. I state it, however, as a conjecture only.
As to the alloy for gold coin, the British is an ounce in the pound; the French, Spanish, and Portuguese differ from that, only from a quarter of a grain, to a grain and a half. I should, therefore, prefer the British, merely because its fraction stands in a more simple form, and facilitates the calculations into which it enters.
Should the Unit be fixed at 365 grains of pure silver, gold at 15 for 1, and the alloy of both be one twelfth, the weights of the coins will be as follows:
15. In this publication, the original Saxon words are given, but, owing to the want of Saxon letter, they are printed in common type.
16. This takes away the punishment of cutting off the hand of a person striking another, or drawing his sword in one of the superior courts of justice. Stamf. P. C. 38; 33 H. 8. c. 12. In an earlier stage of the Common law, it was death.
‘Gif hwa gefeohte on Cyninges huse sy he scyldig ealles his yrfes, and sy on Cyninges dome hwsether he lif age de nage:
si quis in regis domo pugnet, perdat omnem suam ha; reditatem, et in regis sit arbitrio, possideat vitarn an non possideat.‘ LI. Inae. 6. &c.
17. 25 E 3. st. 5. c. 2; 7 W. 3. c. 3, § 2.
18. Though the crime of an accomplice in treason is not here described yet Lord Coke says, the partaking and maintaining a treason herein described makes him a principal in that treason. It being a rule that in treason all are principals.
3 inst. 138; 2 Inst. 590; H. 6. c. 5.
19. These words in the English statute narrow its operation.
A man adhering to the enemies of the Commonwealth, in a foreign country, would certainly not be guilty of treason with us, if these words be retained. The convictions of treason of that kind in England, have been under that branch of the statute which makes the compassing the king’s death treason. Foster, 196, 197. But as we omit that branch, we must by other means reach this flagrant case.
20. The stat. 25 E. 3. directs all other cases of treason to await the opinion of Parliament. This has the effect of negative words, excluding all other treasons. As we drop that part of the statute, we must, by negative words, prevent an inundation of common law treasons. I strike out the word ‘it,’ therefore, and insert ‘the said cases and no others.’ Quaere, how far those negative words may affect the case of accomplices above mentioned? Though if their case was within the statute, so as that it needed not await the opinion of Parliament, it should seem to be also within our act, so as not to be ousted by the negative words.
22. Qu¦re, if the estates of both parties in a duel should not be forfeited? The deceased is equally guilty with a suicide.
23. Qu¦re, if these words may not be omitted? By the Common law, one witness in treason was sufficient. Foster, 233.
Plowd. 8. a. Mirror, c. 3. § 34. Waterhouse on Fortesc de Laud. 252. Carth. 144 per Holt. But Lord Coke, contra, 3 Inst 26. The stat. 1 E. 6. c 12. &5E.6. c. 11. first required two witnesses in treason. The clause against high treason supra, does the same as to high treason; but it seems if 1st and 5th E. 6. are dropped, petty treason will be tried and proved, as at Common law, by one witness. But qu¦re, Lord Coke being contra, whose opinion it is ever dangerous to neglect.
24. These words are intended to take away the peremptory challenge of thirty-five jurors. The same words being used 1 & 2 Ph. k. M. c. 10. are deemed to have restored the peremptory challenge in high treason; and consequently are sufficient to take it away. Foster, 237.
25. Petty treason is considered in law only as an aggravated murder. Foster, 107,323. A pardon of all murders, pardons petty treason. 1 Hale P. C. 378. See 2 H. P. C. 340, 342. It is also included in the word ‘felony,’ so that a pardon of all felonies, pardons petty treason.
26. Manslaughter is punishable at law, by burning in the hand, and forfeiture of chattels.
27. It is best, in this act, to lay down principles only, in order that it may not for ever be undergoing change: and, to carry into effect the minuter parts of it; frame a bill ‘for the employment and government of felons, or male-factors, condemned to labor for the Commonwealth,’ which may serve as an Appendix to this, and in which all the particulars requisite may be directed: and as experience will, from time to time, be pointing out amendments, these may be made without touching this fundamental act. See More’s Utopia pa. 50, for some good hints. Fugitives might, in such a bill, be obliged to work two days for every one they absent themselves.
28. The shooting at a wild fowl, and killing a man, is homicide by misadventure. Shooting at a pullet, without any design to take it away, is manslaughter; and with a design to take it away, is murder. 6 Sta. tr. 222. To shoot at the poultry of another, and thereby set fire to his house, is arson, in the opinion of some. Dalt. c. 116 1 Hale’s P. C.
569, contra.
29. Beccaria, § 32. Suicide. Homicides are, 1. Justifiable. 2.
Excusable. 3. Felonious. For the last, punishments have been already provided. The first are held to be totally without guilt, or rather commendable. The second are, in some cases, not quite unblamable. These should subject the party to marks of contrition; viz. the killing of a man in defence of property; so also in defence of one’s person, which is a species of excusable homicide; because, although cases may happen where these also are commendable, yet most frequently they are done on too slight appearance of danger; as in return for a blow, kick, fillip, &c; or on a person’s getting into a house, not anirno furandi, but perhaps veneris causa, &c. Bracton says, ‘Si quis furem noctupnum occiderit, ita demum impune foret, si parcere ei sine periculo suo non potuit; si autem potuit, aliter erit.’ ‘Item erit si quis hamsokne qua; dicitur invasio domus contra pacem domini regis in domo sua se defenderit, et invasor occisus fuerit; impersecutus et inultus ramanebit, si ille quem invasit aliter se defendere non potuit; dicitur enim quod non est dignus habere pacem qui non vult observare earn.’ L.3. c.23. § 3. ‘Qui latronetn Occident, non tenetur, nocturnum vel diurnnm, si aliter periculum evadere non possit; tenetur ta-men, si possit. Item non tenetur si per inforlunium, et non anitno et voluntate occidendi, nee dolus, nec culpa ejus inveniatur.’ L.3. c.36. § 1. The stat.
24 H. 8. c. 5 is therefore merely declaratory of the Common law. See on the general subject, Puffend. 2. 5. § 10, 11, 12, 16, 17. Excusable homicides are by misadventure, or in self-defence. It is the opinion of some lawyers, that the Common law punished these with death, and that the statute of Marlbridge, c. 26. and Gloucester, c. 9. first took away this by giving them title to a pardon, as matter of right, and a writ of restitution of their goods. See 2 Inst, 148.
315; 3 Inst. 55. Bracton, L. 3. c. 4. § 2. Fleta L, 1. c.
23. § 14, 15; 21 E. 3. 23. But it is believed never to have been capital. 1 H. P. C. 425; 1 Hawk. 75; Foster, 282; 4 Bl.
188. It seems doubtful also, whether at Common law, the party forfeited all his chattels in this case, or only paid a weregild. Foster, ubi supra, doubts, and thinks it of no consequence, as the statute of Gloucester entitles the party to Royal grace, which goes as well to forfeiture as life. To me, there seems no reason for calling these excusable homicides, and the killing a man in defence of property, a justifiable homicide. The latter is less guiltless than misadventure or self defence.
Suicide is by law punishable by forfeiture of chattels. This bill exempts it from forfeiture. The suicide injures the state less than he who leaves it with his effects. If the latter then be not punished, the former should not. As to the example, we need not fear its influence. Men are too much attached to life, to exhibit frequent instances of depriving themselves of it. At any rate, the quasipunishment of confiscation will not prevent it. For if one be found who can calmly determine to renounce life, who is so weary of his existence here, as rather to make experiment of what is beyond the grave, can we suppose him, in such a state of mind, susceptible of influence from the losses to his family by confiscation? That men in general, too, disapprove of this severity, is apparent from the constant practice of juries finding the suicide in a state of insanity; because they have no other way of saving the forfeiture. Let it then be done away.
30. Beccaria, § 19; 25 G. 2. c. 37.
31. 13 E. 1. c. 34. Forcible abduction of a woman having substance, is felony by 3 H. 7, c 2; 3. Inst. 61; 4 Bl. 208.
If goods be taken, it will be felony as to them, without this statute: and as to the abduction of the woman, qu¦re if not better to leave that, and also kidnapping, 4 Bl. 219. to the Common law remedies, viz. fine, imprisonment, and pillory, Raym. 474; 2 Show. 221; Skin. 47; Comb. 10. the writs of Homine replegiando, Capias in Withernam, Habeas corpus, and the action of trespass? Rape was felony at the Common law. 3 Inst. 60 but see 2 Inst. 181. Further—for its definition see 2 Inst. 180. Bracton L.3. 28. § 1. says, the punishment of rape is ‘amissio membrorum, ut sit membrumpro membra, quia virgo, cum corrumpitur, membrum amittit, et ideo corruptor puniatur in eo in quo deliquit; oculos igitur amittat propter aspectum decoris quo virginem concupivit;
amittat et testiculos qui calorem stupri induxerunt. Olim quidem corruptores virginitatis et castitatis suspendebantur et eorum fautores, &c. Modernis tamen temporibus aliter observatur,’ &.c. And Fleta, ‘Solet justiciarius pro quolibet mahemio ad amissionem testiculorum vel oculorum convictum coudemnare, sed non sine errore, eo quod id judicium nisi in corruptione virginum lantum competebat; nam pro virginitatis corruptione solebant abscidi et merito judicari, ut sic pro membro quod abstulit, membrum per quod deliquit amitteret, viz. lesticulos, qui calorem stupri induxerunt,’ &c. Fleta. L. 1. c. 40. § 4. ‘Gif theow man theowne to nydhffimed genyde, gabete mid his eowende: Si servus servam ad sfuprum coegerit, compenset hoc virga sua virili. Si quis pnellam,’ &c. Ll.†liridi. 25. ‘Hi purgst femme per forze forfait ad les membres.’ LI. Gul. Conq. 19.
32. 1 Jac. 1. c. 11. Polygamy was not penal till the statute of 1 Jac. The law contented itself with the nullity of the act. 4 Bl. 163. 3 Inst. 88.
33. 25. H. 8. c. 6. Buggery is twofold. 1. With mankind, 2.
with beasts. Buggery is the genus, of which Sodomy and Bestiality are the species. 12 Co. 37. says, In Dyer, 304. a man was indicted, and found guilty of a rape on a girl of seven years old. The court doubted of the rape of so tender a girl; but if she had been nine years old, it would have been otherwise.’ 14 Eliz. Therefore the statute 18 Eliz. c.
6, says, ‘For plain declaration of law, be it enacted, that if any person shall unlawfully and carnally know and abuse any woman child, under the age of ten years, &c. he shall suffer as a felon, without allowance of clergy.’ Lord Hale, however, 1 P. C. 630. thinks it rape independent of that statute, to know carnally a girl under twelve, the age of consent. Yet, 4 Bl. 212. seems to neglect this opinion; and as it was founded on the words of 3 E. 1. c. 13. and this is with us omitted, the offence of carnally knowing a girl under twelve, or ten years of age, will not be distinguished from that of any other. Co. 37. says ‘note that Sodomy is with mankind.’ But Finch’s L. B. 3. c. 24. ‘Sodomitry is a carnal copulation against nature, to wit, of man or woman in the same sex, or of either of them with beasts.’ 12 Co 36.
says, ‘It appears by the ancient authorities of the law that this was felony.’ Yet the 25 H. 8. declares it felony, as if supposed not to be so. Britton, c, 9. says, that Sodomites are to be burnt. F. N. B. 269. b. Fleta, L 1. c.
37. says, ‘Pecorantes et Sodomise in terra, vivi confodiantur.’ The Mirror makes it treason. Bestiality can never make any progress; it cannot therefore be injurious to society in any great degree, which is the true measure of criminality in foro cirili, and will ever be properly and severely punished, by universal derision. It may, therefore, be omitted. It was anciently punished with death, as it has been latterly. LI †lfrid. 31. and 25 H. 8. c. 6. see Beccaria, § 31. Montesq.
35. 22 &l 23 Car. 2, c. 1. Maiming was felony at the Common law. Britton, c 95. Mehemiurn autem dici poterit, ubi aliquis in aliqua. parte sui corporis la sionern acceperit, per quam affectus sit inutilis ad pugnandum: ut sirnanus ampuletur, vel pes, octilus privetur, vel scerda de osse capitis lavetnr, vel si quis dentes praer. isores amiserit, vel castratus fuerit, et talis pro mahemiato poterit adjudicari.’ Flela, L. 1. c. 40. ‘Et volons que nul maheme nesoit tenus forsque de membre toilet dount home est plus feble a combatre, sicome, del oyl, on de la mayn, ou del pie, on de la tete debruse, ou de les dentz devant.’ Britton, c. 25. For further definitions, see Braclon, L. 3.
c. 24 § 3. 4. Finch, L. B. 3. c. 12; Co. L. 126. a b 288. a;
3 Bl. 121; 4 Bl 205; Stamf. P C. L. 1. c. 41. I do not find any of these definitions confine the offence to wilful and malicious perpetrations of it. 22&23 Car. 2. c. 1, called the Coventry act, has the words ‘on purpose and of malice forethought.’ or does the Common law-prescribe the same punishment for disfiguring, as for maiming.
36. The punishment was by retaliation. ‘Et come ascun appele serra de tele felonie atteint et attende jugement, si soit le jugement tiel que il perde autriel membre come il avera toilet al pleintyre. El sy la pleynte soit faite de femme que avera toilet a home ses membres, en tiei cas perdra la femmela une meyn par jugement, come le membre dount ele avera trespasse.’ Britton, c 25. Flela, B 1. c. 40; LI.
†lfr. 19. 40.
37. 25E.3. st 5. c. 2; 5 El c. 11; 18 El. c. 1; 8 and 9 W. 3.
c. 26; 15. and 16 G 2. c. 28; 7 Ann. q. 25. By the laws of †thelstan and Canute, this was punished by cutting off the hand. ‘Gifse mynetereful wurthe sleaman tha hand of, the he that fil mid worthe and sette iippon tha rnynet smithlhan.’ In English characters and words ‘if the minler foul [Criminal] wert, slay the hand off, that he the foul [crime] with wrought, and set upon the mint-smithery.’ LI,iEthelst.
14. ‘And selhe ofer this false wyrce, tholige thaera handa the he thaet false mid worhte.’ ‘Et si quis prater hanc, falsam fecerit, perdat manum quacum falsam confecit.’ LI.
Cnuti, 8. It had been death by the LI. †ihelredi, sub fine.
By those of H. 1. ‘Si quis cum falso deuario inventus fueril—fiat justitia mea, saltern de dextro pugno et de testiculis.’ Anno 1108. ‘Opera prelium vero est audire quam severus rex fuerit in pravos. Monetarios enim fere omnes totius Angliee fecit ementulari, et manus dextras abscindi, quia monetam furtive corruperant.’ Wilkins ib. et anno 1125.
When the Common law became settled, it appears to have been punishable by death. ‘Est aliud genus crirninis quod sub nomine falsi continetur, et tangit coronam domini regis, et nlfimum indncit supplicium, sicut de illis qui falsam fabricant monetasn, et qui de re non reproba, faciunt reprobam; sicut sunt retonsores deriarinruno’ Bract. L. 3. c 3. § 2. Fleta, L. 1. c. 22 § 4 Lord Hale thinks it was deemed petty treason at common law. 1 H. P. C. 220, 224. The bringing in false money with intent to merchandise, and make payment of it is treason, by 25 E. 3. But the best proof of the intention, is the act of passing it, and why not leave room for repentance here, as in other cases of felonies intended? I H P. C. 229.
38. Clipping, filing, rounding, impairing, scaling, lightening, (the words in the statutes) are included in ‘diminishing;’ gilding, in the word ‘casing;’ coloring in the word ‘washing;’ and falsifying or marking, is counterfeiting.’
39. El. c. 13. confined to four counties. 22 ^ 23 Car. 2. c.
7; 9 G. 1. c. 22, 9 G. 3. c. 29.43
40. Arson was a felony at Common law—3 Inst. 66; punished by a fine, Ll. †thelst. 6. But LI. Cnuti, 61. make it a ‘scetus inexpiable.’ ‘Hus brec and baernet and open thyfth and asbereniorth and hlaford swice after woruld laga is boileds.’ Word for word, ‘House break and burnt, and open theft, and manifest murdher, and lord-treachery, after world’s law is bootless.’ Bracton says, it was punished by death. ‘Si quis turbida seditione iricendium fecerit nequiter et in felonia, vel ob inimicitias, vel praedandi causa, capital puniatur pcena vel sententia.’ Bract. L. 3.
c. 27. He defines it as commissible by burning ‘cedes alien as.’ Ib. Britton, c. 9. ‘Ausi soitenquis de ceux que felonise-ment en temps de pees eient a litre blees ou autre messons ars, et ceux que ser-rount de ceo alteyniz, soient ars issint que eux soient punys par mesme cele chose dount ils pecherent.’ Fleia, L. I. c. 37. is a copy of Bracton.
The Mirror, c. 1. § 8. says, ‘Ardours sont que ardent cilie, ville, maison home, maison beast, ou auters chatelx, de lour felonie en temps de pace pour haine ou vengeance.’ Again, c.
2. § II., pointing oul the words of the appellor ‘jeo dise que Sebright, &c. entiel meas. on ou hiens mist de feu.’ Coke, 3 Inst. 67. says, ‘The ancient authors extended this felony further than houses, viz. to stacks of corn, waynes or carts of coal, wood, or other goods.’ He defines it as commissibie, not only on the inset houses, parcel of the mansion-house, but the outset also, as barn, stable, cowhouse, sheep-house, dairy-house, mill-house, and the like, parcel of the mansion house.’ But ‘burning of a barn, being no parcel of a mansion-house, is no felony,’ unless there be corn or hay within it. Ib. The 22 k. 23 Car. 2. and 9 G. 1.
are the principal statutes against arson. They extend the offence beyond the Common law.
41. Ann. st. 2. c. 9. 12 Ann. c. 18. 4 G. 1. c. 12. 26 G. 2.
c. 19.
43. Robbery was a felony at Common law. 3 Inst. 68. ‘Scelus inexpiable,’ by the LI. Cnuti. 61. [See before in Arson.] It was punished with death. Briit c. 15, ‘De robbours et de larouns et de semblables mesfesours, soitaussi ententivernent enquis—et tauntost soient ceux robbours juges a la morl.’ Fleta says, ‘Si quis conviclus fuerit de bonis viri robbatis vel asportatis ad sectam regis judicium capitale subibit.’ L. 1. c. 39. See also Bract. L. 3. c. 32 § I.
44. Burglary was felony at the Common law. 3 Inst. 63 It was not distinguished by ancient authors, except the Mirror, from simple House-breaking, ib. 65. Burglary and Housebreaking were called ‘Hamsockne.’ ‘Diximus etiam de pacis violatione et de immunitatibus domus, si quis hoc in posterum fecetit ut perdat ornne quod habet, et sit in regis arbitro utrum vitam habeat.’ ‘Eac we quasdon be mundbryce and be ham socnum,sethe hit ofer this do tha:t he dolie enlles thces the age, and sy on Cyninges Jome hwsether be life age: and we quoth of mound-breach, and of home-seeking he who it after this do, that he dole all that he owe [owns], and is in kings doom whether he life owes [owns].’ LI. Eadmundi, c. 6 and see LI. Cnuti. 61. ‘bus btec,’ in notesion Arson, ante. A Burglar was also called a Burgessor.
‘Et soit enquis de Burgessours et sunt tenus Burgessours trestous ceux que felonisement en temps de pees debrusornt esglises ou auter mesons, ou murs ou portes de nos cytes, ou de nos Burghes.’ Britt. c. 10. ‘Burglaria est nocturna diruptio habitaculi alicujus, vel ecclesise, etiam murorum, portarurnve civitatis aut burgi, ad feloniam aliquam perpetrandam. Noclanter dico, recentiores se-cutus; veteres enim hoc non adjungunt.’ Spelm. Gloss, verb. Burglaria. It was punished with death. Ib. citn. from the office of a Coroner. It may be committed in the outset houses, as well as inset, 3 Inst. 65. though not under the same roof or contiguous, provided they be within the Curtilage or Homestall. 4 BI. 225. As by the Common law all felonies were clergiable, the stat. 23 H. 8. c. 1; 5 E. 6. c. 9. and 18 El. c. 7. first distinguished tfiem, by taking the clerical privilege of impunity from the principals, and 3 & 4 W. M.
c. 9. from accessories before the fact. No statute defines what Burglary is. The 12 Ann. c. 7. decides the doubt whether, where breaking is subsequent to entry, it is Burglary. Bacon’s Elements had affirmed, and T. H. P. C.
554. had denied it. Our bill must distinguish them by different degrees of punishment.
45. At the Common law, the offence of House-breaking was not distinguished from Burglary, and neither of them from any other larceny. The statutes at first took away clergy from Burglary, which made a leading distinction between the two offences. Later statutes, however, have taken clergy from so many cases of House-breaking, as nearly to bring the offences together again. These are 23 H. 8. c. 1; 1 E. 6. c.
12; 5 k 6 E. 6. c. 9; 3 & 4 W. M. c. 9; 39 El. c. 15; 10&11 W. 3. c.23; 12 Ann. c. 7. See Burr. 428; 4 Bl. 240. The circumstances, which in these statutes characterize the offence, seem to have been occasional and unsystematical. The houses on which Burglary may be committed, and the circumstances which constitute that crime, being ascertained, it will be better to define House-breoking by the same subjects and circumstances, and let the crimes be distinguished only by the hour at which they are committed, and the degree of punishment.
46. The offence of Horse-stealing seems properly distinguishable from other larcenies, here, where these animals generally run at large, the temptation being so great and frequent, and the facility of commission so remarkable. See 1 E. 6. c. 12; 23 E. 6. c. 33; 31 El. c. 12.
47. The distinction between grand and petty larceny is very ancient. At first 8d. was the sum which constituted grand larceny. LI. †lhelst. c. 1. ‘Ne parcatur ulli furi, qui furtum manutenens captus sit, supra 12 annos nafo, et supra 8 denarios.’ Afterwards, in the same king’s reign, it was raised to 12d. ‘Non parcaturalicui furi ultra 12 denarios, et ultra 12 annos nato—ut occide-mus ilium et capiamus omne quod possidet, et inprimis sumamus rei furto ablatse pretium ab hserede, ac dividatur postea reliquum in duas partes, una pars uxori, si munda, et facinoris conscia non sit; et residuum in duo, dimi-dium capiat rex, dimidium societas.’ LI. †thelst. Wilkins, p. 65. VOL. I. 17
48. LI. Inse, c. 7. ‘Si quis furetur ita ut uxor ejus et infans ipsius nesciani, solvat 60. solidos pcenae loco. Si autem furetur testantibus omuibus haere-dibus suis, abeant omnes in servilutem.’ Ina was King of the West Saxons, and began to reign A. C. 688. After the union of the Heptarchy, i. e. temp. †thelst. inter 924 and 940, we find it punishable with death as above. So it was inter 1017 and 1035, i. e. temp. Cnuti. LI. Cnuti 61. cited in notes on Arson. In the time of William the Conqueror, it seems lo have been made punishable by fine only. LI. Gul. Cohq. apud Wilk. p. 218. 220. This commutation, however, was taken away by LI. H. 1. anno 1108. ‘Si quis in furto vel latro-cinio deprehensus fuisset, suspenderetur: sublata wirgildorum, id est, pecu-niarse redemptions lege.’ Larceny is the felonious taking and carrying away of the personal goods of another.
1. As to the taking, the 3 & 4 VV. M. c. 9. § 5, is not additional to the Common law, but declaratory of it; because where only the care or use, and not the possession, of things is delivered, to take them was larceny at the Common law. The 33 H. 6. c. 1 and 21 11. 8. c. 7., indeed., have added to the Common law by making it larceny in a servant to convert things of his master’s. But qu¦re, if they should be imitated more than as to other breaches of trust in general. 2. As to the subject of larceny, 4 G. 2. c.32; 6 G. 3. c. 36 48; 43 El. c. 7; 15 Car. 2. c. 2; 23 G. 2 c. 26; 31 G. 2. c.
35; 9 G. 3. c. 41; 25 G. 2. c. 10. have extended larceny to things of various sorts, either real, or fixed to the realty. But the enumeration is unsystematical, and in this country, where the produce of the earth is so spontaneous as to have rendered things of this kind scarcely a breach of civility or good manners in the eyes of the people, qu¦re, if it would not too much enlarge the field of Criminal law?
The same may be questioned of 9 G. J. c. 22; 13 Car. 2. c.
10; 10 G. 2. c. 32; 5 G. 3. c. 14; 22 h 23 Car. 2. c. 25; 37 E. 3. c. 19. making it felony to steal animals ferte natures.
49. 2 G. 2. c. 25 §3; 7 G 3. c. 50.
50. 3 &. 4 W. & M. c. 9. § 4; 5 Ann. c. 31. § 5; 4 G. 1. c. 11. § 1.
52. Breach of prison at the Common law was capital, without regard to the crime for which the party was committed. ‘Cum pro criminis qualitate in carcerem recepti fuerint, conspiraverint (ut ruptis vinculis aut fracto carcere) evadant, atnplius (quam causa pro qua recepti sunt exposuit) puniendi sunt, videlicet ultimo supplicio, quamvis ex eo crimine innocentes inveniantur, propter quod inducti sunt in carcerem et imparcati.’ Bracton L. 3, c. 9. § 4. Britt. c. 11. Fleta, L. 1. c. 26. § 4. Yet in the Y. B. Hill. 1 H. 7.
2. Hussey says, that, by the opinion of Billing and Choke, and all the Justices, it was a felony in strangers only, but not in the prisoner himself. S. C. Fitz. Abr. Co-ron. 48.
They are principal felons, not accessaries, ib. Whether it was felony in the prisoner at Common law, is doubted. Stam.
P. C. 30. b. The Mirror c. 5. § 1. says, ‘Abusion est a tener escape de prisoner, ou de bruserie del gaole pur peche mortal 1, car eel usage nest garrant per nul ley, ne in nul part est use forsque in cest realme, et en France, ems [mais] est leu garrantie de ceo faire per la ley de nature’ 2 Inst. 589. The stat. 1 E. 2, ‘de fragentibus priso-nam,’ ‘restrained the judgment of life and limb for prisonbreaking, to cases where the offence of the prisoner required such judgment.’ It is not only vain but wicked, in a legislator to frame laws in opposition to the laws of nature, and to arm them with the terrors of death. This is truly creating crimes in order to punish them. The law of nature impels every one to escape from confinement; it should not, therefore, be subjected to punishment. Let the legislator restrain his criminal by walls, not by parchment. As to strangers breaking prison to enlarge an offender, they should, and may be fairly considered as accessaries after the fact. This bill saying nothing of the prisoner releasing himself by breach of jail, he will have the benefit of the first section of the bill, which repeals the judgment of life and death at the Common law.
53. ‘Gifwiecan owwe wigleras mansworan, owwe morthwyrhtan owwe fule afylede eebere horcwenan ahwhar on lande wurthan agytene, thonne fyrsie man of earde, and claensie lha.
theode, owwe on earde forfare hi mid ealle, buton hi geswican and the deoper gebetan:’ ‘if witches, or weirds, man-swearers, or murther-wroughters, or foul, defiled, open whore-queens, ay—where in the land were gotten, then force them off earth, and cleanse the nation, or in earth forthfare them withal, buton they beseech, and deeply better.’ LI. Ed. et Guthr. c. 11. ‘Saga; mulieres barbara factitantes sacrificia, aut pestiferi, si cui mortem intulerint, neque id inficiari poterint, capitis pcena esto.’ LI. Aethelst. c. 6. apud Lambard. LI. Aelfr. 30. LI. Cnuti. c. 4. ‘Mesmo eel jugement (d’etrears) eyent sorcers, et sorceresses,’ &c. ut supra. Fleta tit et ubi supra. 3 Inst. 44. Trial of witches before Hale, in 1664.
The statutes 33 H. 8. c. 8. 5. El. c. 16 and 1. Jac. 1. c.
12. seem to be only in confirmation of the Common law. 9 G.
2. c. 25. punishes them with pillory and a year’s imprisonment 3 E. 6 c 15. 5 El. c. 15. punish fond, fantastical, and false prophecies, by fine and imprisonment.
55. As every treason includes within it a misprision of treason, so every felony includes a misprision, or misdemeanor. 1 Hale P. C. 652. 75S. ‘Licet fuerit felonia, tamen in eo continetur misprisio.’ 2 R. 3.10. Both principal and accessary, therefore, may be proceeded against in any case, either for felony, or misprision, at the Common law. Capital cases not being mentioned here, accessaries to them will of course be triable for misprisions, if the offender flies.
57. Whether the judgment of penance lay at Common law. See 2 Inst. 178.2. H. P. C. 321. 4 Bl. 322. It was given on standing mute: but on challenging more than the legal number, whether that sentence, or sentence of death is to be given, seems doubtful. 2 H. P. C. 316. Qu¦re, whether it would not be better to consider the supernumerary challenge as merely void, and to proceed in the trial. Qu¦re too, in case of silence.
58. ‘Cum Clericus sic de crimine convictus degradetur, non sequitur aliapoe-na pro uno delicto, vel pluribus ante degradationem perpetratis. Satis enim sufficit ei pro pcena degradatio, quse est magna capitis diminutio, nisi forte convictus fuerit de apostatia, quia hinc primo degradetur, et postea per manum laicalem comburetur, secundum quod accidit in concilio Oxoni celebrato a bonas memoriae S.
Cantuaren. Archiepiscopo de quodam diacono, qui seapostatavit pro quadam Judaea; qui cum esset per episcopum degradatus, statim fuit igni traditus per manum laicalem.’ Bract. L. 3. c. 9. § 2. ‘Et mesme eel jugement (i. e. qui ils soient ars) eye n’t sorcers et sorceresses, et sodomites et mescreauntz apertement atteyntz.’ Britt. c. 9.
‘Christiani autem Apostatae, sortilegii, et hujusmodi detractari debent et comburi.’ Fleta, L. 1. c. 37. § 2. see 3 Inst. 39; 12 Rep. 92; 1 H. P. C. 393. The extent of the clerical privilege at the Common law, 1. As to the crimes, seems very obscure and uncertain. It extended to no case where the judgment was not of life or limb. Note in 2. H. P. C. 326. This, therefore, excluded it in trespass, petty larceny, or killing se defendendo. In high treason against the person of the King, it seems not to have been allowed.
Note 1 H. P. C. 185. Treasons, therefore, not against the King’s person immediately, petty treasons and felonies, seem to have been the cases where it was allowed; and even of those, not for insidiatio viarum, depopulatio agrorum, or combustio domorum. The statute de Clero, 25 E. 3. st. 3. c.
4. settled the law on this head. 2. As to the persons, it extended to all clerks, always, and toties quoiies. 2 H. P.
C. 374. To nuns also. Fitz. Abr. Coron. 461. 22 E. 3. The clerical habit and tonsure were considered as evidence of the person being clerical. 26 Assiz. 19 & 20 E. 2. Fitz.
Coron. 233. By the 9 E. 4. 28. b. 34 H. 6. 49. a. b. simple reading became the evidence. This extended impunity to a great number of laymen, and toties quoties. The stat. 4 H.
7. c. 13. directed that real clerks should upon a second arraignment, produce their orders, and all others to be burnt in the hand with M. or T. on the first allowance of clergy, and not to be admitted to it a second time. A heretic, Jew, or Turk, (as being incapable of orders) could not have clergy. H Co. Rep. 29. b. But a Greek, or other alien, reading in a book of his own country, might. Bro.
Clergie. 20. So a blind man, if he could speak Latin. Ib.
21. qu, 11. Rep. 29. b. The orders entitling the party were bishops, priests, deacons, and sub-deacons, the inferior being reckoned Clerici in minoribus. 2 H. P. C. 373. Qu¦re, however, if this distinction is not founded on the stat. 23.
H. 8. c. 1; 25. H. 8. c. 32. By merely dropping all the statutes, it should seem that none but clerks would be entitled to this privilege, and that they would, toties quoties.
60. Manslaghter, counterfeiting, arson, asportation of vessels, robbery, burglary, house-breaking, horse-stealing, larceny.
