The Writings of Thomas Jefferson, Vol. 1 (of 9)

1

See Appendix, note A.

2

The name of a public room in the Raleigh.

3

Life of Washington, vol. ii, p. 151.

4

See Appendix, note B.

5

See Appendix, note C.

6

See Girardin's History of Virginia, Appendix No. 12. note.

7

See Appendix, note D.

8

Here, in the original manuscript, commence the "two preceding sheets" referred to by Mr. Jefferson, , as containing "notes" taken by him "whilst these things were going on." They are easily distinguished from the body of the MS. in which they were inserted by him, being of a paper very different in size, quality and color, from that in which the latter is written.

9

July 9.

10

In this publication, the parts struck out are printed in Italics and inclosed in brackets.

11

See Appendix, note B.

12

The above note of the author is on a slip of paper, pasted in at the end of the Declaration. Here is also sewed into the MS. a slip of newspaper containing, under the head "Declaration of Independence," a letter from Thomas M'Kean, to Messrs. William M'Corkle & Son, dated "Philadelphia, June 16, 1817." This letter is to be found in the Port Folio, Sept. 1817, p. 249.

13

Here terminate the author's notes of the "earlier debates on the confederation," and recommences the MS. begun by him in 1821.

14

See Appendix, note A.

15

See Appendix, note E.

16

His ostensible character was to be that of a merchant, his real one that of agent for military supplies, and also for sounding the dispositions of the government of France, and seeing how far they would favor us, either secretly or openly. His appointment had been by the Committee of foreign correspondence, March, 1776.

17

See Appendix, note F.

18

Vattel L. 2, § 156. L. 4, § 77. 1. Mably Droit D'Europe, 86.

19

In the original MS., the paragraph ending "fell through," terminates page 81 between this page and the next, there is stitched in, a leaf of old writing, constituting a memorandum, whereof note G in the Appendix, is a copy.

20

The Crimea.

21

Extract from the despatch of the Count de Vergennes, to the Marquis de Verac, Ambassador from France, at the Hague, dated March 1, 1786:

"The King will give his aid, as far as may be in his power, towards the success of the affair, and will, on his part, invite the Patriots to communicate to him their views, their plans, and their discontents. You may assure them that the King takes a real interest in themselves as well as their cause, and that they may rely upon his protection. On this they may place the greater dependence, as we do not conceal, that if the Stadtholder resumes his former influence, the English System will soon prevail, and our alliance become a mere affair of the imagination. The Patriots will readily feel, that this position would be incompatible both with the dignity and consideration of his Majesty. But in case the Chief of the Patriots should have to fear a division, they would have time sufficient to reclaim those whom the Anglomaniacs had misled, and to prepare matters in such a manner, that the question when again agitated, might be decided according to their wishes. In such a hypothetical case, the King authorizes you to act in concert with them, to pursue the direction which they may think proper to give you, and to employ every means to augment the number of the partisans of the good cause. It remains for me to speak of the personal security of the Patriots. You may assure them, that under every circumstance, the King will take them under his immediate protection, and you will make known wherever you may judge necessary, that his Majesty will regard as a personal offence every undertaking against their liberty. It is to be presumed that this language, energetically maintained, may have some effect on the audacity of the Anglomaniacs, and that the Prince de Nassau will feel that he runs some risk in provoking the resentment of his Majesty."

22

In the impeachment of Judge Pickering, of New Hampshire, a habitual and maniac drunkard, no defence was made. Had there been, the party vote of more than one-third of the Senate would have acquitted him.

23

See Appendix, note H.

24

12. C. 2. c. 18. 15. C. 2. c. 11. 25. C. 2. c. 7. 7. 8. W. M. c. 22. 11. W. 34. Anne. 6. C. 2. c. 13.

25

14. G. 3.

26

14. G. 3.

27

On further inquiry, I find two instances of dissolutions before the Parliament would, of itself, have been at an end: viz., the Parliament called to meet August 24, 1698, was dissolved by King William, December 19, 1700, and a new one called, to meet February 6, 1701, which was also dissolved, November 11, 1701, and a new one met December 30, 1701.

28

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

29

This takes away the punishment of cutting off the hand of a person striking an other, or drawing his sword in one of the superior courts of justice. Stamf. P. C. 38. 33. H. 8. c. 12. In an earlier stage of the Common law, it was death. Gif hwa gefeohte on Cyninges huse sy he scyldig ealles his yrfes, and sy on Cyninges dome hwæther he lif age de nage: si quis in regis domo pugnet, perdat omnem suam haereditatem, et in regis sit arbitrio, possideat vitam an non possideat. Ll. Inae. 6. Gif hwa on Cyninges healle gefeohte, oththe his wæpne gebrede, and hine mon gefo, sy thæt on Cyninges dome swa death, swa lif, swa he him forgyfan wille: si quis in aula regia pugnet, vel arma sua extrahat et capiatur, sit in regis arbitrio tam mors quam vita, sicut ei condonare voluerit. Ll. Alfr. 7. Gif hwa on Cyninges hirede gefeohte tholige thæt lifes, buton se Cyning him gearian wille: si quis in regia dimicat, perdat vitam, nisi rex hoc illi condonare velit. Ll. Cnuti. 56. 4. Bl. 125.

30

25. E. 3. st. 5. c. 2. 7. W. 3. c. 3. § 2.

31

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

32

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

33

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

34

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

35

By the stat. 21. Jac. 1. c. 27. and Act Ass. 1170. c. 12. concealment by the mother of the death of a bastard child is made murder. In justification of this, it is said, that shame is a feeling which operates so strongly on the mind, as frequently to induce the mother of such a child to murder it, in order to conceal her disgrace. The act of concealment, therefore, proves she was influenced by shame, and that influence produces a presumption that she murdered the child. The effect of this law then is, to make what, in its nature, is only presumptive evidence of a murder conclusive of that fact. To this I answer, 1. So many children die before or soon after birth, that to presume all those murdered who are found dead, is a presumption which will lead us oftener wrong than right, and consequently would shed more blood than it would save. 2. If the child were born dead, the mother would naturally choose rather to conceal it, in hopes of still keeping a good character in the neighborhood. So that the act of concealment is far from proving the guilt of murder on the mother. 3. If shame be a powerful affection of the mind, is not parental love also? Is it not the strongest affection known? Is it not greater than even that of self-preservation? While we draw presumptions from shame, one affection of the mind, against the life of the prisoner, should we not give some weight to presumptions from parental love, an affection at least as strong, in favor of life? If concealment of the fact is a presumptive evidence of murder, so strong as to overbalance all other evidence that may possibly be produced to take away the presumption, why not trust the force of this incontestable presumption to the jury, who are, in a regular course, to hear presumptive, as well as positive testimony? If the presumption arising from the act of concealment, may be destroyed by proof positive or circumstantial to the contrary, why should the legislature preclude that contrary proof? Objection. The crime is difficult to prove, being usually committed in secret. Answer. But circumstantial proof will do; for example, marks of violence, the behavior, countenance, &c. of the prisoner, &c. And if conclusive proof be difficult to be obtained, shall we therefore fasten irremovably upon equivocal proof? Can we change the nature of what is contestable, and make it incontestable? Can we make that conclusive which God and nature have made inconclusive? Solon made no law against parricide, supposing it impossible that any one could be guilty of it; and the Persians, from the same opinion, adjudged all who killed their reputed parents to be bastards; and although parental be yet stronger than filial affection, we admit saticide proved on the most equivocal testimony, whilst they rejected all proof of an act certainly not more repugnant to nature, as of a thing impossible, unprovable. See Beccaria, § 31.

36

25. G. 2. c. 37.

37

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

38

Quære, if these words may not be omitted? By the Common law, one witness in treason was sufficient. Foster 233. Plowd. 8. a. Mirror e. 3. § 34. Waterhouse on Fortese. de laud. 252. Carth. 144. per. Holt. But Lord Coke, contra 3 inst. 26. The stat. 1. E. 6. c. 12. & 5. E. 6. c. 11. first required two witnesses in treason. The clause against high treason supra, does the same as to high treason; but it seems if 1st and 5th E. 6. are dropped, Petty treason will be tried and proved, as at Common law, by one witness. But quære, Lord Coke being contra, whose opinion it is ever dangerous to neglect.

39

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

40

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

41

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

42

It is best, in this act, to lay down principles only, in order that it may not forever be undergoing change; and, to carry into effect the minuter parts of it, frame a bill "for the employment and government of felons, or malefactors, condemned to labor for the Commonwealth," which may serve as an Appendix to this, and in which all the particulars requisite may be directed; and as experience will, from time to time, be pointing out amendments, these may be made without touching this fundamental act. See More's Utopia p. 50. for some good hints. Fugitives might, in such a bill, be obliged to work two days for every one they absent themselves.

43

The shooting at a wild fowl, and killing a man, is homicide by misadventure. Shooting at a pullet, without any design to take it away, is manslaughter; and with a design to take it away, is murder. 6 Sta. tr. 222. To shoot at the poultry of another, and thereby set fire to his house, is arson, in the opinion of some. Dalt. c. 116. 1. Hale's P. C. 569. c. contra.

44

Beccaria. § 32. Suicide. Homicides are, 1. Justifiable. 2. Excusable. 3. Felonious. For the last, punishments have been already provided. The first are held to be totally without guilt, or rather commendable. The second are in some cases not quite unblamable. These should subject the party to marks of contrition; viz., the killing of a man in defence of property; so also in defence of one's person, which is a species of excusable homicide; because, although cases may happen where these also are commendable yet most frequently they are done on too slight appearance of danger; as in return for a blow, kick, fillip, &c.; or on a person's getting into a house, not animo furandi, but perhaps veneris causa, &c. Bracton says, "si quis furem nocturnum occident ita demum impune foret, si parcere ei sine periculo suo non potuit, si autem potuit, aliter erit. Item erit si quis hamsokne quae dicitur invasio domus contra pacem domini regis in domo sua se defenderit, et invasor occisus fuerit; impersecutus et insultus remanebit, si ille quem invasit aliter se defendere non potuit; dicitur enim quod non est dignus habere pacem qui non vult observare eam." L. 3. c. 23. § 3. "Qui latronem occiderit, non tenetur, nocturnum vel diurnum, si aliter periculum evadere non possit; tenetur tamen si possit. Item non tenetur si per infortunium, et non animo et voluntate occidendi, nec dolus, nec culpa ejus inveniatur." L. 3. c. 36. § 1. The stat. 24. H. 8. c. 5. is therefore merely declaratory of the Common law. See on the general subject Puffend. 2. 5. § 10. 11. 12. 16. 17. Excusable homicides are by misadventure, or in self-defence. It is the opinion of some lawyers, that the Common law punished these with death, and that the statute of Marlbridge, c. 26. and Gloucester, c. 9. first took away this by giving them title to a pardon, as matter of right, and a writ of restitution of their goods. See 2. Inst. 148. 315. 3. Inst. 55. Bracton L. 3. c. 4. § 2. Fleta L. 1. c. 23. § 14. 15. 21. E. 3. 23. But it is believed never to have been capital. 1. H. P. C. 425. 1 Hawk. 75. Foster, 282. 4. Bl. 188. It seems doubtful also, whether at Common law, the party forfeited all his chattels in this case, or only paid a weregild. Foster, ubi supra, doubts, and thinks it of no consequence, as the statute of Gloucester entitles the party to Royal grace, which goes as well to forfeiture as life. To me there seems no reason for calling these excusable homicides, and the killing a man in defence of property, a justifiable homicide. The latter is less guiltless than misadventure or self-defence.

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

45

Beccaria. § 19. 25. G. 2. c. 37.

46

13. E. 1. e. 34. Forcible abduction of a woman having substance, is felony by 3. H. 7. c. 2. 3. Inst. 61. 4. Bl. 208. If goods be taken, it will be felony as to them, without this statute; and as to the abduction of the woman, quære if not better to leave that, and also kidnapping, 4. Bl. 219. to the Common law remedies, viz., fine, imprisonment, and pillory, Raym. 474. 2 Show. 221. Skin. 47. Comb. 10. the writs of Homine replegiando, Capias in Withernam, Habeas corpus, and the action of trespass? Rape was felony at the Common law. 3. Inst. 60. but see 2. Inst. 181. further—for its definition see 2. Inst. 180. Bracton, L. 3. c. 28. § 1. says the punishment of rape is "amissio membrorum, ut sit membrum pro membro, quia virgo, cum corrumpitur, membrum amittit, et ideo corruptor puniatur in eo in quo deliquit; oculos igitur amittat propter aspectum decoris quo virginem concupivit; amittat et testiculos qui calorem stupri induxerunt. Olim quidem corruptores virginitatis et castitatis suspendebantur et eorum fautores, &c. Modernis tamen temporibus aliter observatur," &c. And Fleta, "solet justiciarius pro quolibet mahemio ad amissionem testiculorum vel oculorum convictum condemnare, sed non sine errore, eo quod id judicium nisi in corruptione virginum tantum competebat; nam pro virginitatis corruptione solebant abscidi et merito judicari, ut sic pro membro quod abstulit, membrum per quod deliquit amitteret, viz., testiculos, qui calorem stupri induxerunt," &c. Fleta, L. 1. c. 40. § 4. "Gif theow man theowne to nydhed genyde, gabte mid his eowende:" "Si servus servam ad stuprum coegerit, compenset hoc virga sua virili. Si quis puellam," &c. Ll. Aelfridi. 25. "Hi purgist femme per forze forfait ad les membres." Ll. Gul. conq. 19. In Dyer, 305, a man was indicted, and found guilty of a rape on a girl of seven years old. The court "doubted of the rape of so tender a girl; but if she had been nine years old, it would have been otherwise." 14. Eliz. Therefore the statute 18. Eliz. e. 6. says, "For plain declaration of law, be it enacted, that if any person shall unlawfully and carnally know and abuse any woman child, under the age of ten years, &c., he shall suffer as a felon, without allowance of clergy." Lord Hale, however, 1. P. C. 630. thinks it rape independent of that statute, to know carnally, a girl under twelve, the age of consent. Yet 4. Bl. 212. seems to neglect this opinion; and as it was founded on the words of 3. E. 1. e. 13. and this is with us omitted, the offence of carnally knowing a girl under twelve, or ten years of age, will not be distinguished from that of any other.

47

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

48

25. H. 8. c. 6. Buggery is twofold. 1. With mankind, 2. with beasts. Buggery is the Genus, of which Sodomy and Bestiality, are the species. 12. Co. 37. says, "note that Sodomy is with mankind." But Finch's L. B. 3. c. 24. "Sodomiary is a carnal copulation against nature, to wit, of man or woman in the same sex, or of either of them with beasts." 12. Co. 36. says, "it appears by the ancient authorities of the law that this was felony." Yet the 25. H. 8. declares it felony, as if supposed not to be so. Britton, c. 9. says, that Sodomites are to be burnt. F. N. B. 269. b. Fleta, L. 1. c. 37. says, "percorantes et Sodomitae in terra vivi confodiantur." The Mirror makes it treason. Bestiality can never make any progress; it cannot therefore be injurious to society in any great degree, which is the true measure of criminality in foro civili, and will ever be properly and severely punished, by universal derision. It may, therefore; be omitted. It was anciently punished with death, as it has been latterly. Ll. Aelfrid. 31. and 25. H. 8. c. 6. see Beccaria. § 31. Montesq.

49

Bracton, Fleta, &c.

50

22. 23. Car. 2. c. l. Maiming was felony at the Common law. Britton, c. 25. "Mahemium autem dici poteri, aubi aliquis in aliqua parte sui corparis laesionem acceperit, per quam affectus sit inutilis ad pugnandum: ut si manus amputetur, vel pes, oculus privetur, vel scerda de osse capitis la veter, vel si quis dentes praecisores amiserit, vel castratus fuerit, et talis pro mahemiato poterit adjudicari." Fleta L. 1. c. 40. "Et volons que nul maheme ne soit tenus forsque de membre tollet dount home est plus feble a combatre, sicome del oyl, ou de la mayn, ou del pie, ou de la tete debruse, ou de les dentz devant." Britton, c. 25. For further definitions, see Bracton, L. 3. c. 24. § 3. 4. Finch L. B. 3. c. 12. Co. L. 126. a. b. 288. a. 3. Bl. 121. 4. Bl. 205. Stamf. P. C. L. 1. c. 41. I do not find any of these definitions confine the offence to wilful and malicious perpetrations of it. 22. 23. Car. 2. c. 1. called the Coventry act, has the words "on purpose and of malice forethought." Nor does the Common law prescribe the same punishment for disfiguring, as for maiming.

51

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

52

25. E. 3. st. 5. c. 2. 5. El. c. 11. 18. El. c. 1. 8. 9. W. 3. c. 26. 15. 16. G. 2. c. 28. 7. Ann. c. 25. By the laws of Aethelstan and Canute, this was punished by cutting off the hand. "Gif se mynetere ful wurthe slea man tha hand of, the he that ful mid worthe and sette uppon tha mynet smiththan." In English characters and words "if the minter foul [criminal] wert, slay the hand off, that he the foul [crime] with wrought, and set upon the mint-smithery." Ll. Aethelst. 14. "Et si quis praeter hanc, falsam fecerit, perdat manum quacum falsam confecit." Ll. Cnuti. 8. It had been death by the Ll. Aethelredi sub fine. By those of II. I. "si quis cum falso denario inventus fuerit—fiat justitia mea, saltem de dextro puguo et de testiculis." Anno 1108. Operae pretium vero est audire quam severus rex fuerit in pravos. Monetarios enim fere omnes totius Angliae fecit ementulari, et manus dextras abscindi, quia monetam furtive corruperant. Wilkins ib. et anno 1125. When the Common law became settled, it appears to have been punishable by death. "Est aluid genus criminis quod sub nomine falsi continetur, et tangit coronam domini regis, et ultimum inducit supplicium, sicut de illis qui falsam fabricant monetam, et qui de re non reproba, faciunt reprobam; sicut sunt retonsores denariorum." Bract. L. 3. c. § 2. Fleta, L. 1. c. 22. § 4. Lord Hale thinks it was deemed petty treason at common law. 1. H. P. C. 220. 224. The bringing in false money with intent to merchandize, and make payment of it, is treason, by 25. E. 3. But the best proof of the intention, is the act of passing it, and why not leave room for repentance here, as in other cases of felonies intended? l. H. P. C. 229.