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a bill for proportioning crimes and punishments (chapter lxiv1 )

Section I.

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 there 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 labours 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 shewn, 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; and by producing in many instances a total dispensation and impunity under the names of pardon and privilege of clergy; 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; and the power of dispensation, so dangerous and mischievous, which produces crimes by holding up a hope of impunity, might totally be abolished, so that men while contemplating to perpetrate a crime would see their punishment ensuing as necessarily as effects follow their causes1 ; for rendering crimes and punishments, therefore, more proportionate to each other.

Sect. II.

Be it enacted by the General Assembly, that no crime shall be henceforth punished by the deprivation of life or limb,2 except those herein after ordained to be so punished.

Sect. III.

1 If a man do levy war2 against the Commonwealth [in the same], or be adherent to the enemies of the Commonwealth [within the same],3 giving to them aid or comfort in the Commonwealth, or elsewhere, and thereof be convicted, of open deed, by the evidence of two sufficient and lawful witnesses, or his own voluntary confession, the said cases, and no4 others, shall be adjudged treasons which extend to the commonwealth, and the person so convicted shall suffer death, by hanging,1 and shall forfeit his lands and goods to the commonwealth.

Sect. IV.

If any person commit petty treason, or a husband murder his wife, a parent2 his child, or a child his parent, he shall suffer death, by hanging, and his body be delivered to Anatomists to be dissected.

Sect. V.

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

Sect. VI.

Whosoever committeth murder by way of duel, shall suffer death by hanging; and if he were the challenger, his body, after death, shall be gibbetted.1 He who removeth it from the gibbet shall be guilty of a misdemeanor, and the officer shall see that it be replaced.

Sect. VII.

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

Sect. VIII.

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,2 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.

Sect. IX.

The same evidence1 shall suffice, and order and course2 of trial be observed in cases of Petty treason as in those of other3 murders.

Sect. X.

Whosoever shall be guilty of manslaughter,4 shall, for the first offence, be condemned to hard5 labour 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.

Sect. XI.

And where persons meaning to commit a trespass1 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.

Sect. XII.

In other cases of homicide the law will not add to the miseries of the party, by punishments or forfeitures.2

Sect. XIII.

Whenever sentence of death shall have been pronounced against any person for treason or murder, execution thereof shall be done on the next day but one, after such sentence, unless it be Sunday, and then on the Monday following.1

Sect. XIV.

Whosoever shall be guilty of rape,2 [polygamy,1 ] or sodomy2 with man or woman, shall be punished; if a man, by castration,3 if a woman, by boring4 through the cartilage of her nose a hole of one half inch in diameter at the least.

Sect. XV.

Whosoever on purpose,5 shall disfigure another, 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 like1 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 land and goods to the sufferer.

Sect. XVI.

Whosoever shall counterfeit2 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 diminish1 each, or any such coin, shall be condemned to hard labour six years in the public works, and shall forfeit all his lands and goods to the commonwealth.

Sect. XVII.

The making false any such paper bill, or note, shall be deemed counterfeiting.

Sect. XVIII.2

Whosoever committeth arson, shall be condemned to hard labour five years in the public works, and shall make good the loss of the sufferers threefold.3

Sect. XIX.

If any person shall, within this Commonwealth, or, being a citizen thereof, shall without the same, wilfully destroy1 or run2 away with any sea-vessel, or goods laden on board thereof, or plunder or pilfer any wreck, he shall be condemned to hard labour five years in the public works, and shall make good the loss of the sufferers threefold.

Sect. XX.

Whosoever committeth a robbery,3 shall be condemned to hard labour four years in the public works, and shall make double reparation to the persons injured.

Sect. XXI.

Whatsoever act, if committed on any mansion-house, would be deemed a burglary,1 shall be burglary, if committed on any other house; and he who is guilty of burglary, shall be condemned to hard labour four years in the public works, and shall make double reparation to the persons injured.

Sect. XXII.

Whatsoever act, if committed in the night time, shall constitute the crime of burglary, shall, if committed in the day, be deemed housebreaking1 ; and whoever is guilty thereof, shall be condemned to hard labour three years in the public works, and shall make reparation to the persons injured.

Sect. XXIII.

Whosoever shall be guilty of horse-stealing,2 shall be condemned to hard labour three years in the public works, and shall make reparation to the person injured.

Sect. XXIV.

Grand larceny3 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 labour1 two years in the public works, and shall make reparation to the person injured.

Sect. XXV.

Petty larceny shall be, where the goods stolen are of less value than five dollars; whosoever shall be guilty thereof, shall be forthwith put in the pillory for a quarter of an hour, shall be condemned to hard labour for one year in the public works, and shall make reparation to the persons injured.

Sect. XXVI.

Robbery1 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 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.

Sect. XXVII.

Buyers2 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.

Sect. XXVIII.

Prison-breakers,3 also, shall be deemed accessaries after the fact, to traitors or felons whom they enlarge from prison.4

Sect. XXIX.

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.1

Sect. XXX.

If the principal offenders be fled,1 or secreted from justice, in any case not touching life or member, the accessaries may, notwithstanding, be prosecuted as if their principal were convicted.2

Sect. XXXI.

If any offender stand mute of obstinacy,3 or challenge peremptorily 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.4

Sect. XXXII.

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 default of testimony, or other cause, they may direct a new trial to be had.5

Sect. XXXIII.

No attainder shall work corruption of blood in any case.

Sect. XXXIV.

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.

Sect. XXXV.

The aid of Counsel,1 and examination of their witnesses on oath, shall be allowed to defendants in criminal prosecutions.

Sect. XXXVI.

Slaves guilty of any offence2 punishable in others by labour 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.

[1 ]The text of this act is printed from that in the Report of the Revisors, but Jefferson’s notes are printed from a MS. copy in his handwriting, now in the Department of State, the text of which differs however materially from the bill as here printed, and which will be found in Washington’s edition, i., 147. Of this bill, he wrote to Wythe:

“Monticello, November 1st, 1778.

“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 notes 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.”

The Saxon character in which a part of his notes are written is here given in Roman. Cf. Jefferson’s Autobiography, i., 70; and Notes on Virginia, Query XIV., vol. iv.

[1 ]From the word “observed” in this sentence, to this point, is omitted in the MS. copy before mentioned.

[2 ]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 hwæther he lif age de nage; si quis in regis domo pugnet, perdat omnem suam hæreditatem, 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.—T. J.

[1 ]25. E. 3. st. 5. c. 2. 7. W. 3. c. 3. § 2,—T. J.

[2 ]Though the crime of an accomplice in treason is not here described, yet, Lord Coke says, the partaking and maintaining a treason herein described, makes him a principal in that treason: it being a rule that in treason all are principals. 3 Inst. 138. 2 Inst. 590. 1 H. 6. 5.—T. J.

[3 ]The words in brackets are inserted by Jefferson in the MS. copy already alluded to. The following explanation is added:

“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.”—T. J.

[4 ]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 effect 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 be ousted by the negative words.—T. J.

[1 ]This implies “by the neck.” See 2 Hawk. 544 notes n. o.—T. J.

[2 ]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 of 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.—T. J.

[1 ]25. G. 2. c. 37.—T. J.

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

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

[2 ]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.—T. J.

[3 ]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.—T. J.

[4 ]Manslaughter is punishable at law, by burning in the hands, and forfeiture of chattels.—T. J.

[5 ]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.—T. J.

[1 ]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.—T. J.

[2 ]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 quæ 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.—T. J.

[1 ]Beccaria. § 19. 25. G. 2. c. 37.—T. J.

[2 ]13. E. 1. c. 34. Forcible abduction of a woman having substance is felony by 3. H. 7. c. 2. 3 Inst. 61. 4 Bl. 208. If goods be taken, it will be felony as to them, without this statute; and as to the abduction of the woman, quære if not better to leave that, and also kidnapping, 4. Bl. 219. to the Common law remedies, viz., fine, imprisonment, and pillory, Raym. 474. 2 Show. 221. Skin. 47. Comb. 10. the writs of Homine replegiando, Capias in Withernam, Habeas corpus, and the action of trespass? Rape was felony at the Common law. 3. Inst. 60. but see 2. Inst. 181. further—for its definition see 2. Inst. 180. Bracton, L. 3. 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; oculus 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 judiciari 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. 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.—T. J.

[1 ]This word was not in the Report of the Revisors, but was inserted by Jefferson in the MS. copy already alluded to. He adds as notes to it: “1. Jac. 1. c. 11. Polygamy was not penal until the statute 1. Jac. The law contented itself with the nullity of the act. 4. Bl. 163. 3. Inst. 88.”

“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.”

[2 ]§ 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, “pecorantes et Sodomitæ 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.—T. J.

[3 ]Bracton, Fleta, &c.—T. J.

[4 ]Altered to “cutting” in MS. copy.

[5 ]In the MS. copy, the words “and of malice forethought shall maim another, or” are added here, and a note on this is:

“22. 23. Car. 2. c. 1. Maiming was felony at the Common law. Britton, c. 25. ‘Mahemium autem dici poteri, aubia aliquis in aliqua parte sui corporis læsionem acceperit, per quam affectus sit inutilis ad pugnandum: ut si manus amputetur, vel pes, oculus privetur, vel scerda de osse capitis laveter, vel si quis dentes præcisores 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 es plus feble a combatre, sicome del oyl, ou de la mayn, ou del pie, on 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.”—T. J.

[1 ]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 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. Ælfr. 19. 40.—T. J.

[2 ]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 Æthelstan 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 Æthelredi sub fine. By those of H. 1. “si quis cum falso denario inventus fuerit—fiat justitia mea, saltem de dextro pugno et de testiculis.” Anno 1108. Operæ pretium vero est audire quam severus rex fuerit in pravos. Monetarios enim fere omnes totius Angliæ 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? 1. H. P. C. 229.—T. J.

[1 ]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.”—T. J.

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

[3 ]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 pœna vel sententia.” 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 eient 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 [[Editor: illegible word 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.—T. J.]]

[1 ]1. Ann. st. 2. c. 9. 12. Ann. c. 18. 4. G. 1. c. 12. 26. G. 2. c. 19.—T. J.

[2 ]11. 12. W. 3. c. 7.

[3 ]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.—T. J.

[1 ]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 debrusont 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 ecclesiæ, 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.—T. J.

[1 ]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.—T. J.

[2 ]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.—T. J.

[3 ]The distinction between grand and petty larceny, is very ancient. At first 8d. was the sum which constituted grand larceny. Ll. Æthelst. 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 ablatæ 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.—T. J.

[1 ]Ll. Inae. c. 7. “Si quis furetur ita ut uxor ejus et infans ipsius nesciant, solvat 60. solidos pœnæ loco. Si autem furetur testantibus omnibus hæredibus 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. Æthelst. 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, pecuniaræ 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. 45. 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.—T. J.

[1 ]2 G. 2. c. 25 § 3. 7 G. 3. c. 50.—T. J.

[2 ]3. 4. W. M. c. 9. § 4. 5 Ann. c. 31. § 5. 4 G. 1. c. 11. § 1.—T. J.

[3 ]1 E. 2.—T. J.

[4 ]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 Coke, 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 the 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 next 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.—T. J.

[1 ]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, murther-wroughters, or foul, defiled, open whore-queens, anywhere in the land were gotten, then force them off the earth, and cleanse the nation, or in earth forth-fare them withal, but on they beseech, and deeply better. Ll. Ed. et Guthr. c. 11. “Sagæ, mulieres barbara, factitantes sacrificia, aut pestiferi, si cui mortem intulerint, neque id inficiari poterint, capitis poena esto.” Ll. Æthelst. 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.—T. J.

[1 ]1 Ann. c. 9. § 2.—T. J.

[2 ]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.—T. J.

[3 ]E. 1. c. 12.—T. J.

[4 ]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. Quære, whether it would not be better to consider the supernumerary challenge as merely void, and to proceed in the trial? Quære too, in case of silence?—T. J.

[5 ]“Cum Clericus sic de crimine convictus degradetur non sequitur alia pœna pro uno delicto, vel pluribus ante degradationem perpetratis. Satis enim sufficit ei pro pœna degradatio, quæ 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 bonæ memoriæ S. Cantuanen. Archiepiscopo de quodam diacono, qui se apostatavit pro quadam Judaæ; qui cum esset per episcopum degradatus, statim fuit igni traditus per manum laicalem.” Bract. L. 3. c. 9 § 2. “Et mesme cel jugement (i. e. qui ils soient ars eyent) sorcers et sorceresses, et sodomites et mescreauntz apertement atteyntz.” Britt. c. 9. “Christiani autem Apostatæ, 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 defen dendo. 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 varium, 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 quoties. 2 H. P. C. 374. To nuns also. Fitz. Abr. Corone. 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. Corone. 233. By the 9 E. 4. 28. b. 34. H. 6. 49 a. b. a 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. 11. 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 subdeacons, the inferior being reckoned Clerici in minoribus. 2. H. P. C. 373. Quære, 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.—T. J.

[1 ]1 Ann. c. 9.—T. J.

[2 ]Manslaughter, counterfeiting, arson, asportation of vessels, robbery burglary, house-breaking, horse-stealing, larceny.—T. J.