The subsequent signatures of members who were not then present, and some of them not yet in office, is easily explained, if we observe who they were; to wit, that they were of New York and Pennsylvania. New York did not sign till the 15th, because it was not till the 9th, (five days after the general signature,) that their Convention authorized them to do so. The Convention of Pennsylvania, learning that it had been signed by a majority only of their delegates, named a new delegation on the 20th, leaving out Mr. Dickinson, who had refused to sign, Willing and Humphreys, who had withdrawn, reappointing the three members who had signed, Morris, who had not been present, and five new ones, to wit, Rush, Clymer, Smith, Taylor, and Ross: and Morris and the five new members were permitted to sign, because it manifested the assent of their full delegation, and the express will of their Convention, which might have been doubted on the former signature of a minority only. Why the signature of Thornton, of New Hampshire, was permitted so late as the 4th of November, I cannot now say; but undoubtedly for some particular reason, which we should find to have been good, had it been expressed. These were the only post-signers, and you see, sir, that there were solid reasons for receiving those of New York and Pennsylvania, and that this circumstance in no wise affects the faith of this Declaratory Charter of our rights, and of the rights of man.
With a view to correct errors of fact before they become inveterate by repetition, I have stated what I find essentially material in my papers, but with that brevity which the labor of writing constrains me to use.
On the four particular articles of inquiry in your letter, respecting your grandfather, the venerable Samuel Adams, neither memory nor memorandums enable me to give any information. I can say that he was truly a great man, wise in council, fertile in resources, immovable in his purposes, and had, I think, a greater share than any other member, in advising and directing our measures in the Northern war. As a speaker, he could not be compared with his living colleague and namesake, whose deep conceptions, nervous style, and undaunted firmness, made him truly our bulwark in debate. But Mr. Samuel Adams, although not of fluent elocution, was so rigorously logical, so clear in his views, abundant in good sense, and master always of his subject, that he commanded the most profound attention whenever he rose in an assembly, by which the froth of declamation was heard with the most sovereign contempt. I sincerely rejoice that the record of his worth is to be undertaken by one so much disposed as you will be, to hand him down fairly to that posterity, for whose liberty and happiness he was so zealous a laborer.
With sentiments of sincere veneration for his memory, accept yourself this tribute to it, with the assurances of my great respect.
P. S. August 6th, 1822. Since the date of this letter, to wit, this day, August 6, '22, I have received the new publication of the Secret Journals of Congress, wherein is stated a resolution of July 19th, 1776, that the Declaration passed on the 4th, be fairly engrossed on parchment, and when engrossed, be signed by every member; and another of August 2nd, that being engrossed and compared at the table, it was signed by the members; that is to say, the copy engrossed on parchment (for durability) was signed by the members, after being compared at the table with the original one signed on paper, as before stated. I add this P. S. to the copy of my letter to Mr. Wells, to prevent confounding the signature of the original with that of the copy engrossed on parchment.
[NOTE C]—August, 1774, Instructions to the first Delegation
On the Instructions given to the first Delegation of Virginia to Congress, in August, 1774.
The Legislature of Virginia happened to be in session in Williamsburg, when news was received of the passage, by the British Parliament, of the Boston Port Bill, which was to take effect on the first day of June then ensuing. The House of Burgesses, thereupon, passed a resolution, recommending to their fellow-citizens that that day should be set apart for fasting and prayer to the Supreme Being, imploring him to avert the calamities then threatening us, and to give us one heart and one mind to oppose every invasion of our liberties. The next day, May the 20th, 1774, the Governor dissolved us. We immediately repaired to a room in the Raleigh tavern, about one hundred paces distant from the Capitol, formed ourselves into a meeting, Peyton Randolph in the chair, and came to resolutions, declaring, that an attack on one colony to enforce arbitrary acts, ought to be considered as an attack on all, and to be opposed by the united wisdom of all. We, therefore, appointed a Committee of Correspondence, to address letters to the Speakers of the several Houses of Representatives of the colonies, proposing the appointment of deputies from each, to meet annually in a general Congress, to deliberate on their common interests, and on the measures to be pursued in common. The members then separated to their several homes, except those of the Committee, who met the next day, prepared letters according to instructions, and despatched them by messengers express, to their several destinations. It had been agreed, also by the meeting, that the Burgesses, who should be elected under the writs then issuing, should be requested to meet in Convention on a certain day in August, to learn the result of these letters, and to appoint delegates to a Congress, should that measure be approved by the other colonies. At the election, the people re-elected every man of the former Assembly, as a proof of their approbation of what they had done. Before I left home to attend the Convention, I prepared what I thought might be given, in instruction, to the Delegates who should be appointed to attend the General Congress proposed. They were drawn in haste, with a number of blanks, with some uncertainties and inaccuracies of historical facts, which I neglected at the moment, knowing they could be readily corrected at the meeting. I set out on my journey, but was taken sick on the road, and was unable to proceed. I therefore sent on, by express, two copies, one under cover to Patrick Henry, the other to Peyton Randolph, who I knew would be in the chair of the Convention. Of the former no more was ever heard or known. Mr. Henry probably thought it too bold, as a first measure, as the majority of the members did. On the other copy being laid on the table of the Convention, by Peyton Randolph, as the proposition of a member who was prevented from attendance by sickness on the road, tamer sentiments were preferred, and, I believe, wisely preferred; the leap I proposed being too long, as yet, for the mass of our citizens. The distance between these, and the instructions actually adopted, is of some curiosity, however, as it shows the inequality of pace with which we moved, and the prudence required to keep front and rear together. My creed had been formed on unsheathing the sword at Lexington. They printed the paper, however, and gave it the title of 'A Summary View of the Rights of British America.' In this form it got to London, where the opposition took it up, shaped it to opposition views, and, in that form, it ran rapidly through several editions.
Mr. Marshall, in his history of General Washington, chapter 3, speaking of this proposition for Committees of correspondence and for a General Congress, says, 'this measure had already been proposed in town meeting in Boston,' and some pages before he had said, that 'at a session of the General Court of Massachusetts, in September, 1770, that Court, in pursuance of a favorite idea of uniting all the colonies in one system of measures, elected a Committee of correspondence, to communicate with such Committees as might be appointed by the other colonies.' This is an error. The Committees of correspondence, elected by Massachusetts, were expressly for a correspondence among the several towns of that province only. Besides the text of their proceedings, his own note X, proves this. The first proposition for a general correspondence between the several states, and for a General Congress, was made by our meeting of May, 1774. Botta, copying Marshall, has repeated his error, and so it will be handed on from copyist to copyist, ad infinitum. Here follow my proposition, and the more prudent one which was adopted.
'Resolved, That it be an instruction to the said deputies, when assembled in General Congress, with the deputies from the other states of British America, to propose to the said Congress that an humble and dutiful address be presented to his Majesty, begging leave to lay before him, as Chief Magistrate of the British empire, the united complaints of his Majesty's subjects in America; complaints which are excited by many unwarrantable encroachments and usurpations, attempted to be made by the legislature of one part of the empire upon the rights which God and the laws have given equally and independently to all. To represent to his Majesty that, these, his States, have often individually made humble application to his imperial throne, to obtain, through its intervention, some redress of their injured rights; to none of which was ever even an answer condescended. Humbly to hope that this, their joint address, penned in the language of truth, and divested of those expressions of servility which would persuade his Majesty that we are asking favors, and not rights, shall obtain from his Majesty a more respectful acceptance; and this his Majesty will think we have reason to expect, when he reflects that he is no more than the chief officer of the people, appointed by the laws, and circumscribed with definite powers, to assist in working the great machine of government, erected for their use, and, consequently, subject to their superintendence; and in order that these, our rights, as well as the invasions of them, may be laid more fully before his Majesty, to take a view of them from the origin and first settlement of these countries.
'To remind him that our ancestors, before their emigration to America, were the free inhabitants of the British dominions in Europe, and possessed a right, which nature has given to all men, of departing from the country in which chance, not choice, has placed them, of going in quest of new habitations, and of there establishing new societies, under such laws and regulations, as to them shall seem most likely to promote public happiness. That their Saxon ancestors had, under this universal law, in like manner left their native wilds and woods in the North of Europe, had possessed themselves of the island of Britain, then less charged with inhabitants, and had established there that system of laws which has so long been the glory and protection of that country. Nor was ever any claim of superiority or dependence asserted over them, by that mother country from which they had migrated: and were such a claim made, it is believed his Majesty's subjects in Great Britain have too firm a feeling of the rights derived to them from their ancestors, to bow down the sovereignty of their state before such visionary pretensions. And it is thought that no circumstance has occurred to distinguish, materially, the British from the Saxon emigration. America was conquered, and her settlements made and firmly established, at the expense of individuals, and not of the British public. Their own blood was spilt in acquiring lands for their settlement, their own fortunes expended in making that settlement effectual. For themselves they fought, for themselves they conquered, and for themselves alone they have right to hold. No shilling was ever issued from the public treasures of his Majesty, or his ancestors, for their assistance, till of very late times, after the colonies had become established on a firm and permanent fooling. That then, indeed, having become valuable to Great Britain for her commercial purposes, his Parliament was pleased to lend them assistance, against an enemy who would fain have drawn to herself the benefits of their commerce, to the great aggrandizement of herself, and danger of Great Britain. Such assistance, and in such circumstances, they had often before given to Portugal and other allied states, with whom they carry on a commercial intercourse. Yet these states never supposed, that by calling in her aid, they thereby submitted themselves to her sovereignty. Had such terms been proposed, they would have rejected them with disdain, and trusted for better to the moderation of their enemies, or to a vigorous exertion of their own force. We do not, however, mean to underrate those aids, which, to us, were doubtless valuable, on whatever principles granted: but we would show that they cannot give a title to that authority which the British Parliament would arrogate over us; and that they may amply be repaid, by our giving to the inhabitants of Great Britain such exclusive privileges in trade as may be advantageous to them, and, at the same time, not too restrictive to ourselves. That settlement having been thus effected in the wilds of America, the emigrants thought proper to adopt that system of laws, under which they had hitherto lived in the mother country, and to continue their union with her, by submitting themselves to the same common sovereign, who was thereby made the central link, connecting the several parts of the empire thus newly multiplied.
'But that not long were they permitted, however far they thought themselves removed from the hand of oppression, to hold undisturbed, the rights thus acquired at the hazard of their lives and loss of their fortunes. A family of Princes was then on the British throne, whose treasonable crimes against their people brought on them, afterwards, the exertion of those sacred and sovereign rights of punishment, reserved in the hands of the people for cases of extreme necessity, and judged by the constitution unsafe to be delegated to any other judicature. While every day brought forth some new and unjustifiable exertion of power over their subjects on that side the water, it, was not to be expected that those here, much less able at that time to oppose the designs of despotism, should be exempted from injury. Accordingly, this country, which had been acquired by the lives, the labors, and fortunes of individual adventurers, was by these Princes, at several times, parted out and distributed among the favorites and followers of their fortunes; and, by an assumed right of the crown alone, were erected into distinct and independent governments; a measure, which, it is believed, his Majesty's prudence and understanding would prevent him from imitating at this day; as no exercise of such power, of dividing and dismembering a country, has ever occurred in his Majesty's realm of England, though now of very ancient standing; nor could it be justified or acquiesced under there, or in any other part of his Majesty's empire.
'That the exercise of a free trade with all parts of the world, possessed by the American colonists, as of natural right, and which no law of their own had taken away or abridged, was next the object of unjust encroachment. Some of the colonies having thought proper to continue the administration of their government in the name and under the authority of his Majesty, King Charles the First, whom, notwithstanding his late deposition by the Commonwealth of England, they continued in the sovereignty of their State, the Parliament, for the Commonwealth, took the same in high offence, and assumed upon themselves the power of prohibiting their trade with all other parts of the world, except the Island of Great Britain. This arbitrary act, however, they soon recalled, and by solemn treaty entered into on the 12th day of March, 1651, between the said Commonwealth by their Commissioners, and the colony of Virginia by their House of Burgesses, it was expressly stipulated by the eighth article of the said treaty, that they should have "free trade as the people of England do enjoy to all places and with all nations, according to the laws of that Commonwealth." But that, upon the restoration of his Majesty, King Charles the Second, their rights of free commerce fell once more a victim to arbitrary power: and by several acts of his reign, as well as of some of his successors, the trade of the colonies was laid under such restrictions, as show what hopes they might form from the justice of a British Parliament, were its uncontrolled power admitted over these States.*
*12. C.2. c. 18. 15. C.2. c.11. 25. C.2. c.7. 7. 8. W. M. c.22. 11. W.34. Anne. 6. C.2. c.13.
History has informed us, that bodies of men, as well as individuals, are susceptible of the spirit of tyranny. A view of these acts of Parliament for regulation, as it has been affectedly called, of the American trade, if all other evidences were removed out of the case, would undeniably evince the truth of this observation. Besides the duties they impose on our articles of export and import, they prohibit our going to any markets northward of Cape Finisterra, in the kingdom of Spain, for the sale of commodities which Great Britian will not take from us, and for the purchase of others, with which she cannot supply us; and that, for no other than the arbitrary purpose of purchasing for themselves, by a sacrifice of our rights and interests, certain privileges in their commerce with an allied state, who, in confidence that their exclusive trade with America will be continued, while the principles and power of the British Parliament be the same, have indulged themselves in every exorbitance which their avarice could dictate, or our necessities extort; have raised their commodities called for in America, to the double and treble of what they sold for, before such exclusive privileges were given them, and of what better commodities of the same kind would cost us elsewhere; and, at the same time, give us much less for what we carry thither, than might be had at more convenient ports. That these acts prohibit us from carrying, in quest of other purchasers, the surplus of our tobaccos, remaining after the consumption of Great Britain is supplied: so that we must leave them with the British merchant, for whatever he will please to allow us, to be by him re-shipped to foreign markets, where he will reap the benefits of making sale of them for full value. That, to heighten still the idea of Parliamentary justice, and to show with what moderation they are like to exercise power, where themselves are to feel no part of its weight, we take leave to mention to his Majesty certain other acts of the British Parliament, by which they would prohibit us from manufacturing, for our own use, the articles we raise on our own lands, with our own labor. By an act passed in the fifth year of the reign of his late Majesty, King George the Second, an American subject is forbidden to make a hat for himself, of the fur which he has taken, perhaps on his own soil; an instance of despotism, to which no parallel can be produced in the most arbitrary ages of British history. By one other act, passed in the twenty-third year of the same reign, the iron which we make, we are forbidden to manufacture; and, heavy as that article is, and necessary in every branch of husbandry, besides commission and insurance, we are to pay freight for it to Great Britain, and freight for it back again, for the purpose of supporting, not men, but machines, in the island of Great Britain. In the same spirit of equal and impartial legislation, is to be viewed the act of Parliament, passed in the fifth year of the same reign, by which American lands are made subject to the demands of British creditors, while their own lands were still continued unanswerable for their debts; from which one of these conclusions must necessarily follow, either that justice is not the same thing in America as in Britain, or else that the British Parliament pay less regard to it here than there. But, that we do not point out to his Majesty the injustice of these acts, with intent to rest on that principle the cause of their nullity; but to show that experience confirms the propriety of those political principles, which exempt us from the jurisdiction of the British Parliament. The true ground on which we declare these acts void, is, that the British Parliament has no right to exercise authority over us.
'That these exercises of usurped power have not been confined to instances alone, in which themselves were interested; but they have also intermeddled with the regulation of the internal affairs of the colonies. The act of the 9th of Anne for establishing a post-office in America seems to have had little connection with British convenience, except that of accommodating his Majesty's ministers and favorites with the sale of a lucrative and easy office.
'That thus have we hastened through the reigns which preceded his Majesty's, during which the violations of our rights were less alarming, because repeated at more distant intervals, than that rapid and bold succession of injuries, which is likely to distinguish the present from all other periods of American story. Scarcely have our minds been able to emerge from the astonishment, into which one stroke of Parliamentary thunder has involved us, before another more heavy and more alarming is fallen on us. Single acts of tyranny may be ascribed to the accidental opinion of a day; but a series of oppressions, begun at a distinguished period, and pursued unalterably through every change of ministers, too plainly prove a deliberate, systematical plan of reducing us to slavery.
'That the act passed in the fourth year of his Majesty's reign, entitled "an act [ Act for granting certain duties.]
'One other act passed in the fifth year of his reign, entitled "an act [Stamp Act.]
'One other act passed in the sixth year of his reign, entitled "an act [Act declaring the right of Parliament over the colonies.]
'And one other act passed in the seventh year of his reign, entitled an act [ Act for granting duties on paper, tea, &c.
'Form that connected chain of parliamentary usurpation, which has already been the subject of frequent applications to his Majesty, and the Houses of Lords and Commons of Great Britain; and, no answers having yet been condescended to any of these, we shall not trouble his Majesty with a repetition of the matters they contained.
'But that one other act passed in the same seventh year of his reign, having been a peculiar attempt, must ever require peculiar mention. It is entitled "an act [Act suspending Legislature of New York.]
'One free and independent legislature hereby takes upon itself to suspend the powers of another, free and independent as itself. Thus exhibiting a phenomenon unknown in nature, the creator and creature of its own power. Not only the principles of common sense, but the common feelings of human nature must be surrendered up, before his Majesty's subjects here can be persuaded to believe, that they hold their political existence at the will of a British Parliament. Shall these governments be dissolved, their property annihilated, and their people reduced to a state of nature, at the imperious breath of a body of men whom they never saw, in whom they never confided, and over whom they have no powers of punishment or removal, let their crimes against the American public be ever so great? Can any one reason be assigned, why one hundred and sixty thousand electors in the island of Great Britain should give law to four millions in the states of America, every individual of whom is equal to every individual of them in virtue, in understanding, and in bodily strength? Were this to be admitted, instead of being a free people, as we have hitherto supposed, and mean to continue ourselves, we should suddenly be found the slaves, not of one, but of one hundred and sixty thousand tyrants; distinguished, too, from all others, by this singular circumstance, that they are removed from the reach of fear, the only restraining motive which may hold the hand of a tyrant.
'That, by "an act to discontinue in such manner, and for such time as are therein mentioned, the landing and discharging, lading or shipping of goods, wares, and merchandise, at the town and within the harbor of Boston, in the province of Massachusetts Bay, in North America," [14 G.3.] which was passed at the last session of the British Parliament, a large and populous town, whose trade was their sole subsistence, was deprived of that trade, and involved in utter ruin. Let us for a while, suppose the question of right suspended, in order to examine this act on principles of justice. An act of Parliament had been passed, imposing duties on teas, to be paid in America, against which act the Americans had protested, as inauthoritative. The East India Company, who till that time had never sent a pound of tea to America on their own account, step forth on that occasion, the asserters of Parliamentary right, and send hither many ship-loads of that obnoxious commodity. The masters of their several vessels, however, on their arrival in America, wisely attended to admonition, and returned with their cargoes. In the province of New England alone, the remonstrances of the people were disregarded, and a compliance, after being many days waited for, was flatly refused. Whether in this, the master of the vessel was governed by his obstinacy, or his instructions, let those who know, say. There are extraordinary situations which require extraordinary interposition. An exasperated people, who feel that they possess power, are not easily restrained within limits strictly regular. A number of them assembled in the town of Boston, threw the tea into the ocean, and dispersed without doing any other act of violence. If in this they did wrong, they were known, and were amenable to the laws of the land; against which, it could not be objected that they had ever, in any instance, been obstructed or diverted from their regular course, in favor of popular offenders. They should, therefore, not have been distrusted on this occasion. But that ill-fated colony had formerly been bold in their enmities against the House of Stuart, and were now devoted to ruin, by that unseen hand which governs the momentous affairs of this great empire. On the partial representations of a few worthless ministerial dependants, whose constant office it has been to keep that government embroiled, and who, by their treacheries, hope to obtain the dignity of British knighthood, without calling for a party accused, without asking a proof, without attempting a distinction between the guilty and the innocent, the whole of that ancient and wealthy town, is in a moment reduced from opulence to beggary. Men who had spent their lives in extending the British commerce, who had invested in that place, the wealth their honest endeavors had merited, found themselves and their families, thrown at once on the world, for subsistence by its charities. Not the hundredth part of the inhabitants of that town had been concerned in the act complained of; many of them were in Great Britain, and in other parts beyond sea; yet all were involved in one indiscriminate ruin, by a new executive power, unheard of till then, that of a British Parliament. A property of the value of many millions of money was sacrificed to revenge, not to repay, the loss of a few thousands. This is administering justice with a heavy hand indeed! And when is this tempest to be arrested in its course? Two wharves are to be opened again when his Majesty shall think proper: the residue which lined the extensive shores of the bay of Boston, are for ever interdicted the exercise of commerce. This little exception seems to have been thrown in for no other purpose, than that of setting a precedent for investing his Majesty with legislative powers. If the pulse of his people shall beat calmly under this experiment, another and another will be tried, till the measure of despotism be filled up. It would be an insult on common sense, to pretend that this exception was made in order to restore its commerce to that great town. The trade which cannot be received at two wharves alone, must of necessity be transferred to some other place; to which it will soon be followed by that of the two wharves. Considered in this light, it would be an insolent and cruel mockery at the annihilation of the town of Boston. By the act for the suppression of riots and tumults in the town of Boston, [14 G.3.] passed also in the last session of Parliament, a murder committed there, is, if the Governor pleases, to be tried in the court of King's Bench, in the island of Great Britain, by a jury of Middlesex. The witnesses, too, on receipt of such a sum as the Governor shall think it reasonable for them to expend, are to enter into recognisance to appear at the trial. This is, in other words, taxing them to the amount of their recognisance; and that amount may be whatever a Governor pleases. For who does his Majesty think can be prevailed on to cross the Atlantic, for the sole purpose of bearing evidence to a fact? His expenses are to be borne, indeed, as they shall be estimated by a Governor; but who are to feed the wife and children whom he leaves behind, and who have had no other subsistence but his daily labor? Those epidemical disorders, too, so terrible in a foreign climate, is the cure of them to be estimated among the articles of expense, and their danger to be warded off by the almighty power of a Parliament? And the wretched criminal, if he happen to have offended on the American side, stripped of his privilege of trial by peers of his vicinage, removed from the place where alone full evidence could be obtained, without money, without counsel, without friends, without exculpatory proof, is tried before Judges predetermined to condemn. The cowards who would suffer a countryman to be torn from the bowelss of their society, in order to be thus offered a sacrifice to Parliamentary tyranny, would merit that everlasting infamy now fixed on the authors of the act! A clause, for a similar purpose, had been introduced into an act passed in the twelfth year of his Majesty's reign, entitled, "an act for the better securing and preserving his Majesty's dock-yards, magazines, ships, ammunition, and stores;" against which, as meriting the same censures, the several colonies have already protested.
'That these are the acts of power, assumed by a body of men foreign to our constitutions, and unacknowledged by our laws; against which we do, on behalf of the inhabitants of British America, enter this our solemn and determined protest. And we do earnestly entreat his Majesty, as yet the only mediatory power between the several states of the British empire, to recommend to his Parliament of Great Britain, the total revocation of these acts, which, however nugatory they be, may yet prove the cause of further discontents and jealousies among us.
'That we next proceed to consider the conduct of his Majesty, as holding the Executive powers of the laws of these states, and mark out his deviations from the line of duty. By the constitution of Great Britain, as well as of the several American States, his Majesty possesses the power of refusing to pass into a law, any bill which has already passed the other two branches of the legislature. His Majesty, however, and his ancestors, conscious of the impropriety of opposing their single opinion to the united wisdom of two Houses of Parliament, while their proceedings were unbiased by interested principles, for several ages past, have modestly declined the exercise of this power, in that part of his empire called Great Britain. But, by change of circumstances, other principles than those of justice simply, have obtained an influence on their determinations. The addition of new states to the British empire, has produced an addition of new, and sometimes, opposite interests. It is now, therefore, the great office of his Majesty, to resume the exercise of his negative power, and to prevent the passage of laws by any one legislature of the empire, which might bear injuriously on the rights and interests of another. Yet this will not excuse the wanton exercise of this power, which we have seen his Majesty practise on the laws of the American legislatures. For the most trifling reasons, and sometimes for no conceivable reason at all, his Majesty has rejected laws of the most salutary tendency. The abolition of domestic slavery is the great object of desire in those colonies, where it was, unhappily, introduced in their infant state. But previous to the enfranchisement of the slaves we have, it is necessary to exclude all further importations from Africa. Yet our repeated attempts to effect this, by prohibitions, and by imposing duties which might amount to a prohibition, have been hitherto defeated by his Majesty's negative: thus preferring the immediate advantages of a few British corsairs to the lasting interests of the American States, and to the rights of human nature, deeply wounded by this infamous practice. Nay, the single interposition of an interested individual against a law, was scarcely ever known to fail of success, though in the opposite scale were placed the interests of a whole country. That this is so shameful an abuse of a power, trusted with his Majesty for other purposes, as if, not reformed, would call for some legal restrictions.
'With equal inattention to the necessities of his people here, has his Majesty permitted our laws to lie neglected in England for years, neither confirming them by his assent, nor annulling them by his negative: so that such of them as have no suspending clause, we hold on the most precarious of all tenures, his Majesty's will; and such of them as suspend themselves till his Majesty's assent be obtained, we have feared might be called into existence at some future and distant period, when time and change of circumstances shall have rendered them destructive to his people here. And, to render this grievance still more oppressive, his Majesty, by his instructions, has laid his Governors under such restrictions, that they can pass no law of any moment, unless it have such suspending clause: so that, however immediate may be the call for legislative interposition, the law cannot be executed till it has twice crossed the Atlantic, by which time the evil may have spent its whole force.
'But in what terms reconcilable to Majesty, and,at the same time to truth, shall we speak of a late instruction to his Majesty's Governor of the colony of Virginia, by which he is forbidden to assent to any law for the division of a county, unless the new county will consent to have no representative in Assembly? That colony has as yet affixed no boundary to the westward. Their Western counties, therefore, are of indefinite extent. Some of them are actually seated many hundred miles from their Eastern limits. Is it possible, then that his Majesty can have bestowed a single thought on the situation of those people, who, in order to obtain justice for injuries, however great or small, must, by the laws of that colony, attend their county court at such a distance, with all their witnesses, monthly, till their litigation be determined? Or does his Majesty seriously wish, and publish it to the world, that his subjects should give up the glorious right of representation, with all the benefits derived from that, and submit themselves to be absolute slaves of his sovereign will? Or is it rather meant to confine the legislative body to their present numbers, that they may be the cheaper bargain, whenever they shall become worth a purchase?
'One of the articles of impeachment against Tresilian and the other Judges of Westminster Hall, in the reign of Richard the Second, for which they suffered death, as traitors to their country, was, that they had advised the King that he might dissolve his Parliament at any time: and succeeding Kings have adopted the opinion of these unjust Judges. Since the establishment, however, of the British constitution, at the glorious Revolution, on its free and ancient principles, neither his Majesty nor his ancestors have exercised such a power of dissolution in the island of Great Britain;* and, when his Majesty was petitioned by the united voice of his people there to dissolve the present Parliament, who had become obnoxious to them, his Ministers were heard to declare, in open Parliament, that his Majesty possessed no such power by the constitution. But how different their language, and his practice, here! To declare, as their duty required, the known rights of their country, to oppose the usurpation of every foreign judicature, to disregard the imperious mandates of a Minister or Governor, have been the avowed causes of dissolving Houses of Representatives in America. But if such powers be really vested in his Majesty, can he suppose they are there placed to awe the members from such purposes as these? When the representative body have lost the confidence of their constituents, when they have notoriously made sale of their most valuable rights, when they have assumed to themselves powers which the people never put into their hands, then, indeed, their continuing in office becomes dangerous to the state, and calls for an exercise of the power of dissolution. Such being the causes for which the representative body should, and should not, be dissolved, will it not appear strange, to an unbiassed observer, that that of Great Britain was not dissolved, while those of the colonies have repeatedly incurred that sentence?
* On further inquiry, I find two instances of dissolutions before the Parliament would, of itself, have been at an end: viz. the Parliament called to meet August 24, 1698, was dissolved by King William, December 19, 1700, and a new one called, to meet February 6, 1701, which was also dissolved November 11, 1701, and a new one met December 30, 1701.
But your Majesty or your Governors have carried this power beyond every limit known or provided for by the laws. After dissolving one House of Representatives, they have refused to call another, so that, for a great length of time, the legislature provided by the laws has been out of existence. From the nature of things, every society must at all times possess within itself the sovereign powers of legislation. The feelings of human nature revolt against the supposition of a state so situated, as that it may not, in any emergency, provide against dangers which perhaps threaten immediate ruin. While those bodies are in existence to whom the people have delegated the powers of legislation, they alone possess, and may exercise, those powers. But when they are dissolved, by the lopping off one or more of their branches, the power reverts to the people, who may use it to unlimited extent, either assembling together in person, sending deputies, or in any other way they may think proper. We forbear to trace consequences further; the dangers are conspicuous with which this practice is replete.
'That we shall, at this time also, take notice of an error in the nature of our land-holdings, which crept in at a very early period of our settlement. The introduction of the feudal tenures into the kingdom of England, though ancient, is well enough understood to set this matter in a proper light. In the earlier ages of the Saxon settlement, feudal holdings were certainly altogether unknown, and very few, if any, had been introduced at the time of the Norman conquest. Our Saxon ancestors held their lands, as they did their personal property, in absolute dominion, disencumbered with any superior, answering nearly to the nature of those possessions which the Feudalists term Allodial. William the Norman first introduced that system generally. The lands which had belonged to those who fell in the battle of Hastings, and in the subsequent insurrections of his reign, formed a considerable proportion of the lands of the whole kingdom. These he granted out, subject to feudal duties, as did he also those of a great number of his new subjects, who, by persuasions or threats, were induced to surrender them for that purpose. But still much was left in the hands of his Saxon subjects, held of no superior, and not subject to feudal conditions. These, therefore, by express laws, enacted to render uniform the system of military defence, were made liable to the same military duties as if they had been feuds: and the Norman lawyers soon found means to saddle them, also, with all the other feudal burthens. But still they had not been surrendered to the King, they were not derived from his grant, and therefore they were not holden of him. A general principle, indeed, was introduced, that "all lands in England were held either mediately or immediately of the Crown:" but this was borrowed from those holdings which were truly feudal, and only applied to others for the purposes of illustration. Feudal holdings were, therefore, but exceptions out of the Saxon laws of possession, under which all lands were held in absolute right. These, therefore, still form the basis or groundwork of the common law, to prevail wheresoever the exceptions have not taken place. America was not conquered by William the Norman, nor its lands surrendered to him or any of his successors. Possessions there are, undoubtedly, of the Allodial nature. Our ancestors, however, who migrated hither, were laborers, not lawyers. The fictitious principle, that all lands belong originally to the King, they were early persuaded to believe real, and accordingly took grants of their own lands from the Crown. And while the Crown continued to grant for small sums and on reasonable rents, there was no inducement to arrest the error, and lay it open to public view. But his Majesty has lately taken on him to advance the terms of purchase and of holding to the double of what they were; by which means the acquisition of lands being rendered difficult, the population of our country is likely to be checked. It is time, therefore, for us to lay this matter before his Majesty, and to declare that he has no right to grant lands of himself. From the nature and purpose of civil institutions, all the lands within the limits which any particular society has circumscribed around itself, are assumed by that society, and subject to their allotment; this may be done by themselves assembled collectively, or by their legislature, to whom they may have delegated sovereign authority: and, if they are allotted in neither of these ways, each individual of the society may appropriate to himself such lands as he finds vacant, and occupancy will give him title.
'That, in order to enforce the arbitrary measures before complained of, his Majesty has, from time to time, sent among us large bodies of armed forces, not made up of the people here, nor raised by the authority of our laws. Did his Majesty possess such a right as this, it might swallow up all our other rights whenever he should think proper. But his Majesty has no right to land a single armed man on our shores; and those whom he sends here are liable to our laws for the suppression and punishment of riots, routs, and unlawful assemblies, or are hostile bodies invading us in defiance of law. When, in the course of the late war, it became expedient that a body of Hanoverian troops should be brought over for the defence of Great Britain, his Majesty's grandfather, our late sovereign, did not pretend to introduce them under any authority he possessed. Such a measure would have given just alarm to his subjects of Great Britain, whose liberties would not be safe if armed men of another country, and of another spirit, might be brought into the realm at any time, without the consent, of their legislature. He, therefore, applied to Parliament, who passed an act for that purpose, limiting the number to be brought in, and the time they were to continue. In like manner is his Majesty restrained in every part of the empire. He possesses indeed the executive power of the laws in every state; but they are the laws of the particular state, which he is to administer within that state, and not those of any one within the limits of another. Every state must judge for itself, the number of armed men which they may safely trust among them, of whom they are to consist, and under what restrictions they are to be laid. To render these proceedings still more criminal against our laws, instead of subjecting the military to the civil power, his Majesty has expressly made the civil subordinate to the military. But can his Majesty thus put down all law under his feet? Can he erect a power superior to that which erected himself? He has done it indeed by force; but let him remember that force cannot give right.
'That these are our grievances, which we have thus laid before his Majesty, with that freedom of language and sentiment which becomes a free people, claiming their rights as derived from the laws of nature, and not as the gift of their Chief Magistrate. Let those flatter, who fear: it is not an American art. To give praise where it is not due, might be well from the venal, but would ill beseem those who are asserting the rights of human nature. They know, and will, therefore, say, that Kings are the servants, not the proprietors of the people. Open your breast, Sire, to liberal and expanded thought. Let not the name of George the Third be a blot on the page of history. You are surrounded by British counsellors, but remember that they are parties. You have no ministers for American affairs, because you have none taken from among us, nor amenable to the laws on which they are to give you advice. It behoves you, therefore, to think and to act for yourself and your people. The great principles of right and wrong are legible to every reader: to pursue them, requires not the aid of many counsellors. The whole art of government consists in the art of being honest. Only aim to do your duty, and mankind will give you credit where you fail. No longer persevere in sacrificing the rights of one part of the empire, to the inordinate desires of another: but deal out to all, equal and impartial right. Let no act be passed by any one legislature, which may infringe on the rights and liberties of another. This is the important post in which fortune has placed you, holding the balance of a great, if a well poised empire. This, Sire, is the advice of your great American council, on the observance of which may, perhaps, depend your felicity and future fame, and the preservation of that harmony which alone can continue, both to Great Britain and America, the reciprocal advantages of their connection. It is neither our wish nor our interest to separate from her. We are willing, on our part, to sacrifice every thing which reason can ask, to the restoration of that tranquillity for which all must wish. On their part, let them be ready to establish union on a generous plan. Let them name their terms, but let them be just. Accept of every commercial preference it is in our power to give, for such things as we can raise for their use, or they make for ours. But let them not think to exclude us from going to other markets, to dispose of those commodities which they cannot use, nor to supply those wants which they cannot supply. Still less, let it be proposed, that our properties, within our own territories, shall be taxed or regulated by any power on earth, but our own. The God who gave us life, gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them. This, Sire, is our last, our determined resolution. And that you will be pleased to interpose, with that efficacy which your earnest endeavors may insure, to procure redress of these our great grievances, to quiet the minds of your subjects in British America against any apprehensions of future encroachment, to establish fraternal love and harmony through the whole empire, and that that may continue to the latest ages of time, is the fervent prayer of all British America,'
[NOTE D.]—August, 1774., Instructions for the Deputies
Instructions for the Deputies appointed to meet in General Congress on the Part of this Colony.
The unhappy disputes between Great Britain and her American colonies, which began about the third year of the reign of his present Majesty, and since, continually increasing, have proceeded to lengths so dangerous and alarming, as to excite just apprehensions in the minds of his Majesty's faithful subjects of this colony, that they are in danger of being deprived of their natural, ancient, constitutional, and chartered rights, have compelled them to take the same into their most serious consideration; and, being deprived of their usual and accustomed mode of making known their grievances, have appointed us their representatives, to consider what is proper to be done in this dangerous crisis of American affairs. It being our opinion that the united wisdom of North America should be collected in a general congress of all the colonies, we have appointed the Honorable Peyton Randolph, Richard Henry Lee, George Washington, Patrick Henry, Richard Bland, Benjamin Harrison, and Edmund Pendleton, Esquires, deputies to represent this colony in the said Congress, to be held at Philadelphia, on the first Monday in September next.
And that they may be the better informed of our sentiments, touching the conduct we wish them to observe on this important occasion, we desire that they will express, in the first place, our faith and true allegiance to his Majesty, King George the Third, our lawful and rightful sovereign; and that we are determined, with our lives and fortunes, to support him in the legal exercise of all his just rights and prerogatives. And, however misrepresented, we sincerely approve of a constitutional connection with Great Britain, and wish, most ardently, a return of that intercourse of affection and commercial connection, that formerly united both countries, which can only be effected by a removal of those causes of discontent, which have of late unhappily divided us.
It cannot admit of a doubt, but that British subjects in America are entitled to the same rights and privileges, as their fellow subjects possess in Britain; and therefore, that the power assumed by the British Parliament, to bind America by their statutes, in all cases whatsoever, is unconstitutional, and the source of these unhappy differences.
The end of government would be defeated by the British Parliament exercising a power over the lives, the property, and the liberty of American subjects; who are not, and, from their local circumstances, cannot be, there represented. Of this nature, we consider the several acts of Parliament, for raising a revenue in America, for extending the jurisdiction of the courts of Admiralty, for seizing American subjects, and transporting them to Britain, to be tried for crimes committed in America, and the several late oppressive acts respecting the town of Boston and Province of the Massachusetts Bay.
The original constitution of the American colonies possessing their assemblies with the sole right of directing their internal polity, it is absolutely destructive of the end of their institution, that their legislatures should be suspended, or prevented, by hasty dissolutions, from exercising their legislative powers.
Wanting the protection of Britain, we have long acquiesced in their acts of navigation, restrictive of our commerce, which we consider as an ample recompense for such protection; but as those acts derive their efficacy from that foundation alone, we have reason to expect they will be restrained, so as to produce the reasonable purposes of Britain, and not injurious to us.
To obtain redress of these grievances, without which the people of America can neither be safe, free, nor happy, they are willing to undergo the great inconvenience that will be derived to them, from stopping all imports whatsoever, from Great Britain, after the first day of November next, and also to cease exporting any commodity whatsoever, to the same place, after the tenth day of August, 1775. The earnest desire we have to make as quick and full payment as possible of our debts to Great Britain, and to avoid the heavy injury that would arise to this country from an earlier adoption of the non-exportation plan, after the people have already applied so much of their labor to the perfecting of the present crop, by which means they have been prevented from pursuing other methods of clothing and supporting their families, have rendered it necessary to restrain you in this article of non-exportation; but it is our desire, that you cordially co-operate with our sister colonies in General Congress, in such other just and proper methods as they, or the majority, shall deem necessary for the accomplishment of these valuable ends.
The proclamation issued by General Gage, in the government of the Province of the Massachusetts Bay, declaring it treason for the inhabitants of that province to assemble themselves to consider of their grievances, and form associations for their common conduct on the occasion, and requiring the civil magistrates and officers to apprehend all such persons, to be tried for their supposed offences, is the most alarming process that ever appeared in a British government; that the said General Gage hath, thereby, assumed, and taken upon himself, powers denied by the constitution to our legal sovereign; that he, not having condescended to disclose by what authority he exercises such extensive and unheard-of powers, we are at a loss to determine, whether he intends to justify himself as the representative of the King, or as the Commander in Chief of his Majesty's forces in America. If he considers himself as acting in the character of his Majesty's representative, we would remind him that the statute 25 Edward the Third has expressed and defined all treasonable offences, and that the legislature of Great Britain hath declared, that no offence shall be construed to be treason, but such as is pointed out by that statute, and that this was done to take out of the hands of tyrannical Kings, and of weak and wicked Ministers, that deadly weapon, which constructive treason had furnished them with, and which had drawn the blood of the best and honestest men in the kingdom; and that the King of Great Britain hath no right by his proclamation to subject his people to imprisonment, pains, and penalties.
That if the said General Gage conceives he is empowered to act in this manner, as the Commander in Chief of his Majesty's forces in America, this odious and illegal proclamation must be considered as a plain and full declaration, that this despotic Viceroy will be bound by no law, nor regard the constitutional rights of his Majesty's subjects, whenever they interfere with the plan he has formed for oppressing the good people of the Massachusetts Bay; and, therefore, that the executing, or attempting to execute, such proclamation, will justify resistance and reprisal.
[NOTE E.]—Monticello, November 1, 1778.—[Re: Crimes and Punishment]
I have got through the bill 'for proportioning crimes and punishments in cases heretofore capital,' and now enclose it to you with a request that you will be so good, as scrupulously to examine and correct it, that it may be presented to our committee, with as few defects as possible. In its style, I have aimed at accuracy, brevity, and simplicity, preserving, however, the very words of the established law, wherever their meaning had been sanctioned by judicial decisions, or rendered technical by usage. The same matter, if couched in the modern statutory language, with all its tautologies, redundancies, and circumlocutions, would have spread itself over many pages, and been unintelligible to those whom it most concerns. Indeed, I wished to exhibit a sample of reformation in the barbarous style, into which modern statutes have degenerated from their ancient simplicity. And I must pray you to be as watchful over what I have not said, as what is said; for the omissions of this bill have all their positive meaning. I have thought it better to drop, in silence, the laws we mean to discontinue, and let them be swept away by the general negative words of this, than to detail them in clauses of express repeal. By the side of the text I have written the note? I made, as I went along, for the benefit of my own memory. They may serve to draw your attention to questions, to which the expressions or the omissions of the text may give rise. The extracts from the Anglo-Saxon laws, the sources of the Common law, I wrote in their original, for my own satisfaction;* but I have added Latin, or liberal English translations. From the time of Canute to that of the Magna Charta, you know, the text of our statutes is preserved to us in Latin only, and some old French.
* In this publication, the original Saxon words are given, but, owing to the want of Saxon letter, they are printed in common type.
I have strictly observed the scale of punishments settled by the Committee, without being entirely satisfied with it. The Lex talionis, although a restitution of the Common law, to the simplicity of which we have generally found it so advantageous to return, will be revolting to the humanized feelings of modern times. An eye for an eye, and a hand for a hand, will exhibit spectacles in execution, whose moral effect would be questionable; and even the membrum pro membro of Bracton, or the punishment of the offending member, although long authorized by our law, for the same offence in a slave, has, you know, been not long since repealed, in conformity with public sentiment. This needs reconsideration.
I have heard little of the proceedings of the Assembly, and do not expect to be with you till about the close of the month. In the mean time, present me respectfully to Mrs. Wythe, and accept assurances of the affectionate esteem and respect of, Dear Sir, Your friend and servant,
George Wythe, Esq.
Bill for proportioning Crimes and Punishments, in Cases heretofore Capital.
Whereas, it frequently happens that wicked and dissolute men, resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties, and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in its principal purpose, were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears, at the same time, equally deducible from the purposes of society, that a member thereof, committing an inferior injury, does not wholly forfeit the protection of his fellow-citizens, but, after suffering a punishment in proportion to his offence, is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange, in a proper scale, the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.
And whereas, the reformation of offenders, though an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate, instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow-citizens, which also weaken the State, by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.
And forasmuch as the experience of all ages and countries hath shown, that cruel and sanguinary laws defeat their own purpose, by engaging the benevolence of mankind to withhold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination, as well as their duty, to see the laws observed.
For rendering crimes and punishments, therefore, more proportionate to each other.
Be it enacted by the General Assembly, that no crime shall be henceforth punished by deprivation of life or limb,* except those hereinafter ordained to be so punished.
* This takes away the punishment of cutting off the hand of a person striking another, or drawing his sword in one of the superior courts of justice. Stamf. P. C. 38; 33 H. 8. c. 12. In an earlier stage of the Common law, it was death. 'Gif hwa gefeohte on Cyninges huse sy he scyldig ealles his yrfes, and sy on Cyninges dome hwsether he lif age de nage: si quis in regis domo pugnet, perdat omnem suam ha; reditatem, et in regis sit arbitrio, possideat vitarn an non possideat.' LI. Inae. 6. &c.
*If a man do levy war** against the Commonwealth [in the same], or be adherent to the enemies of the Commonwealth [within the same],*** giving to them aid or comfort in the Commonwealth, or elsewhere, and thereof be convicted of open deed, by the evidence of two sufficient witnesses, or his own voluntary confession, the said cases, and no others,**** shall be adjudged treasons which extend to the Commonwealth, and the person so convicted shall suffer death by hanging,***** and shall forfeit his lands and goods to the Commonwealth.
* 25 E 3. st. 5. c. 2; 7 W. 3. c. 3, Sec. 2.
** Though the crime of an accomplice in treason is not here described yet Lord Coke says, the partaking and maintaining a treason herein described makes him a principal in that treason. It being a rule that in treason all are principals. 3 inst. 138; 2 Inst. 590; H. 6. c. 5.
*** These words in the English statute narrow its operation. A man adhering to the enemies of the Commonwealth, in a foreign country, would certainly not be guilty of treason with us, if these words be retained. The convictions of treason of that kind in England, have been under that branch of the statute which makes the compassing the king's death treason. Foster, 196, 197. But as we omit that branch, we must by other means reach this flagrant case.
**** The stat. 25 E. 3. directs all other cases of treason to await the opinion of Parliament. This has the effect of negative words, excluding all other treasons. As we drop that part of the statute, we must, by negative words, prevent an inundation of common law treasons. I strike out the word 'it,' therefore, and insert 'the said cases and no others.' Quaere, how far those negative words may affect the case of accomplices above mentioned? Though if their case was within the statute, so as that it needed not await the opinion of Parliament, it should seem to be also within our act, so as not to be ousted by the negative words.
***** This implies 'by the neck.' See 2 Hawk. 444, notes n.o.
If any person commit petty treason, or a husband murder his wife, a parent his child,* or a child his parent, he shall suffer death by hanging, and his body be delivered to anatomists to be dissected.
* By the stat. 21.Tac. 1. c. 27. and Act Ass. 1710, c. 12. concealment by the mother of the death of a bastard child is made murder. In justification of this, it is said, that shame is a feeling which operates so strongly on the mind, as frequently to induce the mother of such a child to murder it, in order to conceal her disgrace. The act of concealment, therefore, proves she was influenced by shame, and that influence produces a presumption that she murdered the child. The effect of this law, then, is, to make what, in its nature, is only presumptive evidence of a murder, conclusive of that fact. To this I answer, 1. So many children die before, or soon after birth, that to presume all those murdered who are found dead, is a presumption which will lead us oftener wrong than right, and consequently would shed more blood than it would save. 2. If the child were born dead, the mother would naturally choose rather to conceal it, in hopes of still keeping a good character in the neighborhood. So that the act of concealment is far from proving the guilt of murder on the mother. 3. If shame be a powerful affection of the mind, is not parental love also? Is it not the strongest affection known? Is it not greater than even that of self- preservation? While we draw presumptions from shame, one affection of the mind, against the life of the prisoner, should we not give some weight to presumptions from parental love, an affection at least as strong in favor of life? If concealment of the fact is a presumptive evidence of murder, so strong as to overbalance all other evidence that may possibly be produced to take away the presumption, why not trust the force of this incontestable presumption to the jury, who are, in a regular course, to hear presumptive, as well as positive testimony? If the presumption, arising from the act of concealment, may be destroyed by proof positive or circumstantial to the contrary, why should the legislature preclude that contrary proof? Objection. The crime is difficult to prove, being usually committed in secret. Answer. But circumstantial proof will do; for example, marks of violence, the behavior, countenance, &c. of the prisoner, &c. And if conclusive proof be difficult to be obtained, shall we therefore fasten irremovably upon equivocal proof? Can we change the nature of what is contestable, and make it incontestable? Can we make that conclusive which God and nature have made inconclusive? Solon made no law against, parricide, supposing it impossible any one could be guilty of it; and the Persians, from the same opinion, adjudged all who killed their reputed parents to be bastards: and although parental, be yet stronger than filial affection, we admit saticide proved on the most equivocal testimony, whilst they rejected all proof of an act, certainly not more repugnant to nature, as of a thing impossible, improvable. See Beccaria, Sec. 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. Sec. 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 quaere, Lord Coke being contra, whose opinion it is ever dangerous to neglect.
** These words are intended to take away the peremptory challenge of thirty-five jurors. The same words being used 1 & 2 Ph. k. M. c. 10. are deemed to have restored the peremptory challenge in high treason; and consequently are sufficient to take it away. Foster, 237.
*** Petty treason is considered in law only as an aggravated murder. Foster, 107,323. A pardon of all murders, pardons petty treason. 1 Hale P. C. 378. See 2 H. P. C. 340, 342. It is also included in the word 'felony,' so that a pardon of all felonies, pardons petty treason.
Whosoever shall be guilty of manslaughter,* shall, for the first offence, be condemned to hard labor** for seven years, in the public works, shall forfeit one half of his lands and goods to the next of kin to the person slain; the other half to be sequestered during such term, in the hands and to the use of the Commonwealth, allowing a reasonable part of the profits for the support of his family. The second offence shall be deemed murder.
* Manslaughter is punishable at law, by burning in the hand, and forfeiture of chattels.
** It is best, in this act, to lay down principles only, in order that it may not for ever be undergoing change: and, to carry into effect the minuter parts of it; frame a bill 'for the employment and government of felons, or male-factors, condemned to labor for the Commonwealth,' which may serve as an Appendix to this, and in which all the particulars requisite may be directed: and as experience will, from time to time, be pointing out amendments, these may be made without touching this fundamental act. See More's Utopia pa. 50, for some good hints. Fugitives might, in such a bill, be obliged to work two days for every one they absent themselves.
And where persons, meaning to commit a trespass* only, or larceny, or other unlawful deed, and doing an act from which involuntary homicide hath ensued, have heretofore been adjudged guilty of manslaughter, or of murder, by transferring such their unlawful intention to an act much more penal than they could have in probable contemplation; no such case shall hereafter be deemed manslaughter, unless manslaughter was intended, nor murder, unless murder was intended.
* The shooting at a wild fowl, and killing a man, is homicide by misadventure. Shooting at a pullet, without any design to take it away, is manslaughter; and with a design to take it away, is murder. 6 Sta. tr. 222. To shoot at the poultry of another, and thereby set fire to his house, is arson, in the opinion of some. Dalt. c. 116 1 Hale's P. C. 569, contra.
In other cases of homicide, the law will not add to the miseries of the party, by punishments or forfeitures.*
* Beccaria, Sec. 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. Sec. 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. Sec. 1. The stat. 24 H. 8. c. 5 is therefore merely declaratory of the Common law. See on the general subject, Puffend. 2. 5. Sec. 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. Sec. 2. Fleta L, 1. c. 23. Sec. 14, 15; 21 E. 3. 23. But it is believed never to have been capital. 1 H. P. C. 425; 1 Hawk. 75; Foster, 282; 4 Bl. 188. It seems doubtful also, whether at Common law, the party forfeited all his chattels in this case, or only paid a weregild. Foster, ubi supra, doubts, and thinks it of no consequence, as the statute of Gloucester entitles the party to Royal grace, which goes as well to forfeiture as life. To me, there seems no reason for calling these excusable homicides, and the killing a man in defence of property, a justifiable homicide. The latter is less guiltless than misadventure or self defence.
Suicide is by law punishable by forfeiture of chattels. This bill exempts it from forfeiture. The suicide injures the state less than he who leaves it with his effects. If the latter then be not punished, the former should not. As to the example, we need not fear its influence. Men are too much attached to life, to exhibit frequent instances of depriving themselves of it. At any rate, the quasi- punishment of confiscation will not prevent it. For if one be found who can calmly determine to renounce life, who is so weary of his existence here, as rather to make experiment of what is beyond the grave, can we suppose him, in such a state of mind, susceptible of influence from the losses to his family by confiscation? That men in general, too, disapprove of this severity, is apparent from the constant practice of juries finding the suicide in a state of insanity; because they have no other way of saving the forfeiture. Let it then be done away.
Whenever sentence of death shall have been pronounced against any person for treason or murder, execution shall be done on the next day but one after such sentence, unless it be Sunday, and then on the Monday following.*
* Beccaria, Sec. 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 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. Sec. 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. Sec. 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. 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 AElfrid. 31. and 25 H. 8. c. 6. see Beccaria, Sec. 31. Montesq.
****Bracton, Fleta, &c.
But no one shall be punished for Polygamy, who shall have married after probable information of the death of his or her husband or wife, or after his or her husband or wife hath absented him or herself, so that no notice of his or her being alive hath reached such person for seven years together, or hath suffered the punishments before prescribed for rape, polygamy, or sodomy.
Whosoever, on purpose, and of malice forethought, shall maim* another, or shall disfigure him by cutting out or disabling the tongue, slitting or cutting off a nose, lip, or ear, branding, or otherwise, shall be maimed, or disfigured in like** sort: or if that cannot be for want of the same part, then as nearly as may be, in some other part of at least equal value and estimation, in the opinion of a jury, and moreover, shall forfeit one half of his lands and goods to the sufferer.
* 22 &l 23 Car. 2, c. 1. Maiming was felony at the Common law. Britton, c 95. Mehemiurn autem dici poterit, ubi aliquis in aliqua. parte sui corporis la sionern acceperit, per quam affectus sit inutilis ad pugnandum: ut sirnanus ampuletur, vel pes, octilus privetur, vel scerda de osse capitis lavetnr, vel si quis dentes praer. isores amiserit, vel castratus fuerit, et talis pro mahemiato poterit adjudicari.' Flela, L. 1. c. 40. 'Et volons que nul maheme nesoit tenus forsque de membre toilet dount home est plus feble a combatre, sicome, del oyl, on de la mayn, ou del pie, on de la tete debruse, ou de les dentz devant.' Britton, c. 25. For further definitions, see Braclon, L. 3. c. 24 Sec. 3. 4. Finch, L. B. 3. c. 12; Co. L. 126. a b 288. a; 3 Bl. 121; 4 Bl 205; Stamf. P C. L. 1. c. 41. I do not find any of these definitions confine the offence to wilful and malicious perpetrations of it. 22&23 Car. 2. c. 1, called the Coventry act, has the words 'on purpose and of malice forethought.' or does the Common law-prescribe the same punishment for disfiguring, as for maiming.
** The punishment was by retaliation. 'Et come ascun appele serra de tele felonie atteint et attende jugement, si soit le jugement tiel que il perde autriel membre come il avera toilet al pleintyre. El sy la pleynte soit faite de femme que avera toilet a home ses membres, en tiei cas perdra la femmela une meyn par jugement, come le membre dount ele avera trespasse.' Britton, c 25. Flela, B 1. c. 40; LI. 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 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.
* 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 AEthelstan 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. AEihelredi, 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. Sec. 2. Fleta, L. 1. c. 22 Sec. 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.
** 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.'
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.**
*43 El. c. 13. confined to four counties. 22 ^ 23 Car. 2. c. 7; 9 G. 1. c. 22, 9 G. 3. c. 29.
** Arson was a felony at Common law—3 Inst. 66; punished by a fine, Ll. AEthelst. 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. Sec. 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. Sec. 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, cow- house, 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.
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.
* Ann. st. 2. c. 9. 12 Ann. c. 18. 4 G. 1. c. 12. 26 G. 2. c. 19.
** 11 h 12 W.3. c.7.
Whosoever committeth Robbery,* shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured.
* 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 Sec. I.
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.
* 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 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 Home- stall. 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.
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.
* 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.
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.
* 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.
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.
* The distinction between grand and petty larceny is very ancient. At first 8d. was the sum which constituted grand larceny. LI. AElhelst. 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. AEthelst. Wilkins, p. 65. VOL. I. 17
** 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. AEthelst. 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. Sec. 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 quaere, 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, quaere, 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.
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.* 2 G. 2. c. 25 Sec.3; 7 G 3. c. 50.
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.
* 3 &. 4 W. & M. c. 9. Sec. 4; 5 Ann. c. 31. Sec. 5; 4 G. 1. c. 11. Sec. 1.
Prison breakers,* also, shall be deemed accessaries after the fact, to traitors or felons whom they enlarge from prison.**
* 1 E. 2.
** 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. Sec. 4. Britt. c. 11. Fleta, L. 1. c. 26. Sec. 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. Sec. 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 prison- breaking, to cases where the offence of the prisoner required such judgment.'