Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson
Chapter 9 : *If a man do levy war** against the Commonwealth [_in the same_], or be adherent to the

*If a man do levy war** against the Commonwealth [_in the same_], or be adherent to the enemies of the Commonwealth [_within the same_],***

giving to them aid or comfort in the Commonwealth, or elsewhere, and thereof be convicted of open deed, by the evidence of two sufficient witnesses, or his own voluntary confession, the said cases, and no others,**** shall be adjudged treasons which extend to the Commonwealth, and the person so convicted shall suffer death by hanging,***** and shall forfeit his lands and goods to the Commonwealth.

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

** Though the crime of an accomplice in treason is not here described yet Lord c.o.ke says, the partaking and maintaining a treason herein described makes him a princ.i.p.al in that treason. It being a rule that in treason all are princ.i.p.als.

3 inst. 138; 2 Inst. 590; H. 6. c. 5.

*** These words in the English statute narrow its operation.

A man adhering to the enemies of the Commonwealth, in a foreign country, would certainly not be guilty of treason with us, if these words be retained. The convictions of treason of that kind in England, have been under that branch of the statute which makes the compa.s.sing the king's death treason. Foster, 196, 197. But as we omit that branch, we must by other means reach this flagrant case.

**** The stat. 25 E. 3. directs all other cases of treason to await the opinion of Parliament. This has the effect of negative words, excluding all other treasons. As we drop that part of the statute, we must, by negative words, prevent an inundation of common law treasons. I strike out the word 'it,' therefore, and insert 'the said cases and no others.' Quaere, how far those negative words may affect the case of accomplices above mentioned? Though if their case was within the statute, so as that it needed not await the opinion of Parliament, it should seem to be also within our act, so as not to be ousted by the negative words.

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

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

* By the stat. 21.Tac. 1. c. 27. and Act a.s.s. 1710, c. 12.

concealment by the mother of the death of a b.a.s.t.a.r.d child is made murder. In justification of this, it is said, that shame is a feeling which operates so strongly on the mind, as frequently to induce the mother of such a child to murder it, in order to conceal her disgrace. The act of concealment, therefore, proves she was influenced by shame, and that influence produces a presumption that she murdered the child. The effect of this law, then, is, to make what, in its nature, is only presumptive evidence of a murder, conclusive of that fact. To this I answer, 1. So many children die before, or soon after birth, that to presume all those murdered who are found dead, is a presumption which will lead us oftener wrong than right, and consequently would shed more blood than it would save. 2. If the child were born dead, the mother would naturally choose rather to conceal it, in hopes of still keeping a good character in the neighborhood. So that the act of concealment is far from proving the guilt of murder on the mother. 3. If shame be a powerful affection of the mind, is not parental love also? Is it not the strongest affection known? Is it not greater than even that of self- preservation? While we draw presumptions from shame, one affection of the mind, against the life of the prisoner, should we not give some weight to presumptions from parental love, an affection at least as strong in favor of life? If concealment of the fact is a presumptive evidence of murder, so strong as to overbalance all other evidence that may possibly be produced to take away the presumption, why not trust the force of this incontestable presumption to the jury, who are, in a regular course, to hear presumptive, as well as positive testimony? If the presumption, arising from the act of concealment, may be destroyed by proof positive or circ.u.mstantial 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 circ.u.mstantial 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 G.o.d 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 b.a.s.t.a.r.ds: and although parental, be yet stronger than filial affection, we admit saticide proved on the most equivocal testimony, whilst they rejected all proof of an act, certainly not more repugnant to nature, as of a thing impossible, improvable. See Beccaria, -- 31.

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

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

* 25 G. 2. c. 37.

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

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

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

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

* Quaere, 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 c.o.ke, 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 quaere, Lord c.o.ke being contra, whose opinion it is ever dangerous to neglect.

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

*** Petty treason is considered in law only as an aggravated murder. Foster, 107,323. A pardon of all murders, pardons petty treason. 1 Hale P. C. 378. See 2 H. P. C. 340, 342. It is also included in the word 'felony,' so that a pardon of all felonies, pardons petty treason.

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

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

** It is best, in this act, to lay down principles only, in order that it may not for ever be undergoing change: and, to carry into effect the minuter parts of it; frame a bill 'for the employment and government of felons, or male-factors, condemned to labor for the Commonwealth,' which may serve as an Appendix to this, and in which all the particulars requisite may be directed: and as experience will, from time to time, be pointing out amendments, these may be made without touching this fundamental act. See More's Utopia pa.

50, for some good hints. Fugitives might, in such a bill, be obliged to work two days for every one they absent themselves.

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

* The shooting at a wild fowl, and killing a man, is homicide by misadventure. Shooting at a pullet, without any design to take it away, is manslaughter; and with a design to take it away, is murder. 6 Sta. tr. 222. To shoot at the poultry of another, and thereby set fire to his house, is arson, in the opinion of some. Dalt. c. 116 1 Hale's P. C.

569, contra.

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

* Beccaria, -- 32. Suicide. Homicides are, 1. Justifiable. 2.

Excusable. 3. Felonious. For the last, punishments have been already provided. The first are held to be totally without guilt, or rather commendable. The second are, in some cases, not quite unblamable. These should subject the party to marks of contrition; viz. the killing of a man in defence of property; so also in defence of one's person, which is a species of excusable homicide; because, although cases may happen where these also are commendable, yet most frequently they are done on too slight appearance of danger; as in return for a blow, kick, fillip, &c; or on a person's getting into a house, not _anirno furandi_, but perhaps _veneris causa_, &c. Bracton says, '_Si quis furem noctupnum occiderit, ita demum impune foret, si parcere ei sine periculo suo non potuit; si autem potuit, aliter erit.'

'Item erit si quis hamsokne qua; dicitur invasio domus contra pacem domini regis in domo sua se defenderit, et invasor occisus fuerit; impersecutus et inultus ramanebit, si ille quem invasit aliter se defendere non potuit; dicitur enim quod non est dignus habere pacem qui non vult observare earn.' L.3. c.23. -- 3. 'Qui latronetn Occident, non tenetur, nocturnum vel diurnnm, si aliter periculum evadere non possit; tenetur ta-men, si possit. Item non tenetur si per inforlunium, et non anitno et voluntate occidendi, nee dolus, nec culpa ejus inveniatur_.' L.3. c.36. -- 1. The stat.

24 H. 8. c. 5 is therefore merely declaratory of the Common law. See on the general subject, Puffend. 2. 5. -- 10, 11, 12, 16, 17. Excusable homicides are by misadventure, or in self-defence. It is the opinion of some lawyers, that the Common law punished these with death, and that the statute of Marlbridge, c. 26. and Gloucester, c. 9. first took away this by giving them t.i.tle to a pardon, as matter of right, and a writ of rest.i.tution 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 ent.i.tles the party to Royal grace, which goes as well to forfeiture as life. To me, there seems no reason for calling these excusable homicides, and the killing a man in defence of property, a justifiable homicide. The latter is less guiltless than misadventure or self defence.

Suicide is by law punishable by forfeiture of chattels. This bill exempts it from forfeiture. The suicide injures the state less than he who leaves it with his effects. If the latter then be not punished, the former should not. As to the example, we need not fear its influence. Men are too much attached to life, to exhibit frequent instances of depriving themselves of it. At any rate, the quasi- punishment of confiscation will not prevent it. For if one be found who can calmly determine to renounce life, who is so weary of his existence here, as rather to make experiment of what is beyond the grave, can we suppose him, in such a state of mind, susceptible of influence from the losses to his family by confiscation? That men in general, too, disapprove of this severity, is apparent from the constant practice of juries finding the suicide in a state of insanity; because they have no other way of saving the forfeiture. Let it then be done away.

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

* Beccaria, -- 19; 25 G. 2. c. 37.

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

* 13 E. 1. c. 34. Forcible abduction of a woman having substance, is felony by 3 H. 7, c 2; 3. Inst. 61; 4 Bl. 208.

If goods be taken, it will be felony as to them, without this statute: and as to the abduction of the woman, quaere 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 trespa.s.s? 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, c.u.m corrumpitur, membrum amitt.i.t, 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 cast.i.tatis 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.aeliridi. 25. 'Hi purgst femme per forze forfait ad les membres.' LI. Gul. Conq. 19.

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

*** 25. H. 8. c. 6. b.u.g.g.e.ry is twofold. 1. With mankind, 2.

with beasts. b.u.g.g.e.ry is the genus, of which Sodomy and b.e.s.t.i.a.lity 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 s.e.x, 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. b.e.s.t.i.a.lity 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 aelfrid. 31. and 25 H. 8. c. 6. see Beccaria, -- 31. Montesq.

****Bracton, Fleta, &c.

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

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

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

Britton, c. 25. For further definitions, see Braclon, L. 3.

c. 24 -- 3. 4. Finch, L. B. 3. c. 12; Co. L. 126. a b 288. a; 3 Bl. 121; 4 Bl 205; Stamf. P C. L. 1. c. 41. I do not find any of these definitions confine the offence to wilful and malicious perpetrations of it. 22&23 Car. 2. c. 1, called the Coventry act, has the words 'on purpose and of malice forethought.' or does the Common law-prescribe the same punishment for disfiguring, as for maiming.

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

aelfr. 19. 40.

Whosoever shall counterfeit* any coin, current by law within this Commonwealth, or any paper bills issued in the nature of money, or of certificates of loan on the credit of this Commonwealth, or of all or any of the United States of America, or any Inspectors' notes for tobacco, or shall pa.s.s 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.