[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]
Dear Sir,
I have got through the bill ‘for proportioning crimes and punishments in cases heretofore capital,’ and now enclose it to you with a request that you will be so good, as scrupulously to examine and correct it, that it may be presented to our committee, with as few defects as possible. In its style, I have aimed at accuracy, brevity, and simplicity, preserving, however, the very words of the established law, wherever their meaning had been sanctioned by judicial decisions, or rendered technical by usage. The same matter, if couched in the modern statutory language, with all its tautologies, redundancies, and circumlocutions, would have spread itself over many pages, and been unintelligible to those whom it most concerns. Indeed, I wished to exhibit a sample of reformation in the barbarous style, into which modern statutes have degenerated from their ancient simplicity. And I must pray you to be as watchful over what I have not said, as what is said; for the omissions of this bill have all their positive meaning. I have thought it better to drop, in silence, the laws we mean to discontinue, and let them be swept away by the general negative words of this, than to detail them in clauses of express repeal. By the side of the text I have written the note? I made, as I went along, for the benefit of my own memory. They may serve to draw your attention to questions, to which the expressions or the omissions of the text may give rise. The extracts from the Anglo-Saxon laws, the sources of the Common law, I wrote in their original, for my own satisfaction;* but I have added Latin, or liberal English translations. From the time of Canute to that of the Magna Charta, you know, the text of our statutes is preserved to us in Latin only, and some old French.
* 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,
Th: Jefferson.
George Wythe, Esq.
Bill for proportioning Crimes and Punishments, in Cases heretofore Capital.
Whereas, it frequently happens that wicked and dissolute men, resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties, and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in its principal purpose, were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears, at the same time, equally deducible from the purposes of society, that a member thereof, committing an inferior injury, does not wholly forfeit the protection of his fellow-citizens, but, after suffering a punishment in proportion to his offence, is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange, in a proper scale, the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.
And whereas, the reformation of offenders, though an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate, instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow-citizens, which also weaken the State, by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.
And forasmuch as the experience of all ages and countries hath shown, that cruel and sanguinary laws defeat their own purpose, by engaging the benevolence of mankind to withhold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination, as well as their duty, to see the laws observed.
For rendering crimes and punishments, therefore, more proportionate to each other.
Be it enacted by the General Assembly, that no crime shall be henceforth punished by deprivation of life or limb,* except those hereinafter ordained to be so punished.
* 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, § 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.
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, § 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.
* Quære, 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.
* Quære, if these words may not be omitted? By the Common
law, one witness in treason was sufficient. Foster, 233.
Plowd. 8. a. Mirror, c. 3. § 34. Waterhouse on Fortesc de
Laud. 252. Carth. 144 per Holt. But Lord Coke, contra, 3
Inst 26. The stat. 1 E. 6. c 12. &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
quære, 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, § 32. Suicide. Homicides are, 1. Justifiable. 2.
Excusable. 3. Felonious. For the last, punishments have been
already provided. The first are held to be totally without
guilt, or rather commendable. The second are, in some cases,
not quite unblamable. These should subject the party to
marks of contrition; viz. the killing of a man in defence of
property; so also in defence of one’s person, which is a
species of excusable homicide; because, although cases may
happen where these also are commendable, yet most frequently
they are done on too slight appearance of danger; as in
return for a blow, kick, fillip, &c; or on a person’s
getting into a house, not anirno furandi, but perhaps
veneris causa, &c. Bracton says, ‘Si quis furem noctupnum
occiderit, ita demum impune foret, si parcere ei sine
periculo suo non potuit; si autem potuit, aliter erit.’
‘Item erit si quis hamsokne qua; dicitur invasio domus
contra pacem domini regis in domo sua se defenderit, et
invasor occisus fuerit; impersecutus et inultus ramanebit,
si ille quem invasit aliter se defendere non potuit; dicitur
enim quod non est dignus habere pacem qui non vult observare
earn.’ L.3. c.23. § 3. ‘Qui latronetn Occident, non tenetur,
nocturnum vel diurnnm, si aliter periculum evadere non
possit; tenetur ta-men, si possit. Item non tenetur si per
inforlunium, et non anitno et voluntate occidendi, nee
dolus, nec culpa ejus inveniatur.’ L.3. c.36. § 1. The stat.
24 H. 8. c. 5 is therefore merely declaratory of the Common
law. See on the general subject, Puffend. 2. 5. § 10, 11,
12, 16, 17. Excusable homicides are by misadventure, or in
self-defence. It is the opinion of some lawyers, that the
Common law punished these with death, and that the statute
of Marlbridge, c. 26. and Gloucester, c. 9. first took away
this by giving them title to a pardon, as matter of right,
and a writ of restitution of their goods. See 2 Inst, 148.
315; 3 Inst. 55. Bracton, L. 3. c. 4. § 2. Fleta L, 1. c.
23. § 14, 15; 21 E. 3. 23. But it is believed never to have
been capital. 1 H. P. C. 425; 1 Hawk. 75; Foster, 282; 4 Bl.
188. It seems doubtful also, whether at Common law, the
party forfeited all his chattels in this case, or only paid
a weregild. Foster, ubi supra, doubts, and thinks it of no
consequence, as the statute of Gloucester entitles the party
to Royal grace, which goes as well to forfeiture as life. To
me, there seems no reason for calling these excusable
homicides, and the killing a man in defence of property, a
justifiable homicide. The latter is less guiltless than
misadventure or self defence.
Suicide is by law punishable by forfeiture of chattels. This
bill exempts it from forfeiture. The suicide injures the
state less than he who leaves it with his effects. If the
latter then be not punished, the former should not. As to
the example, we need not fear its influence. Men are too
much attached to life, to exhibit frequent instances of
depriving themselves of it. At any rate, the 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, § 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, 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. 28. § 1. says, the
punishment of rape is ‘amissio membrorum, ut sit membrumpro
membra, quia virgo, cum corrumpitur, membrum amittit, et
ideo corruptor puniatur in eo in quo deliquit; oculos igitur
amittat propter aspectum decoris quo virginem concupivit;
amittat et testiculos qui calorem stupri induxerunt. Olim
quidem corruptores virginitatis et castitatis suspendebantur
et eorum fautores, &c. Modernis tamen temporibus aliter
observatur,’ &.c. And Fleta, ‘Solet justiciarius pro
quolibet mahemio ad amissionem testiculorum vel oculorum
convictum coudemnare, sed non sine errore, eo quod id
judicium nisi in corruptione virginum lantum competebat; nam
pro virginitatis corruptione solebant abscidi et merito
judicari, ut sic pro membro quod abstulit, membrum per quod
deliquit amitteret, viz. lesticulos, qui calorem stupri
induxerunt,’ &c. Fleta. L. 1. c. 40. § 4. ‘Gif theow man
theowne to nydhffimed genyde, gabete mid his eowende: Si
servus servam ad sfuprum coegerit, compenset hoc virga sua
virili. Si quis pnellam,’ &c. Ll.Æliridi. 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 Ælfrid. 31. and 25 H. 8. c. 6. see
Beccaria, § 31. Montesq.
****Bracton, Fleta, &c.
But no one shall be punished for Polygamy, who shall have married after probable information of the death of his or her husband or wife, or after his or her husband or wife hath absented him or herself, so that no notice of his or her being alive hath reached such person for seven years together, or hath suffered the punishments before prescribed for rape, polygamy, or sodomy.
Whosoever, on purpose, and of malice forethought, shall maim* another, or shall disfigure him by cutting out or disabling the tongue, slitting or cutting off a nose, lip, or ear, branding, or otherwise, shall be maimed, or disfigured in like** sort: or if that cannot be for want of the same part, then as nearly as may be, in some other part of at least equal value and estimation, in the opinion of a jury, and moreover, shall forfeit one half of his lands and goods to the sufferer.
* 22 &l 23 Car. 2, c. 1. Maiming was felony at the Common
law. Britton, c 95. Mehemiurn autem dici poterit, ubi
aliquis in aliqua. parte sui corporis la sionern acceperit,
per quam affectus sit inutilis ad pugnandum: ut sirnanus
ampuletur, vel pes, octilus privetur, vel scerda de osse
capitis lavetnr, vel si quis dentes praer. isores amiserit,
vel castratus fuerit, et talis pro mahemiato poterit
adjudicari.’ Flela, L. 1. c. 40. ‘Et volons que nul maheme
nesoit tenus forsque de membre toilet dount home est plus
feble a combatre, sicome, del oyl, on de la mayn, ou del
pie, on de la tete debruse, ou de les dentz devant.’
Britton, c. 25. For further definitions, see Braclon, L. 3.
c. 24 § 3. 4. Finch, L. B. 3. c. 12; Co. L. 126. a b 288. a;
3 Bl. 121; 4 Bl 205; Stamf. P C. L. 1. c. 41. I do not find
any of these definitions confine the offence to wilful and
malicious perpetrations of it. 22&23 Car. 2. c. 1, called
the Coventry act, has the words ‘on purpose and of malice
forethought.’ or does the Common law-prescribe the same
punishment for disfiguring, as for maiming.
** 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.
Ælfr. 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
Æthelstan 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. Æihelredi, sub fine.
By those of H. 1. ‘Si quis cum falso deuario inventus
fueril—fiat justitia mea, saltern de dextro pugno et de
testiculis.’ Anno 1108. ‘Opera prelium vero est audire quam
severus rex fuerit in pravos. Monetarios enim fere omnes
totius Angliee fecit ementulari, et manus dextras abscindi,
quia monetam furtive corruperant.’ Wilkins ib. et anno 1125.
When the Common law became settled, it appears to have been
punishable by death. ‘Est aliud genus crirninis quod sub
nomine falsi continetur, et tangit coronam domini regis, et
nlfimum indncit supplicium, sicut de illis qui falsam
fabricant monetasn, et qui de re non reproba, faciunt
reprobam; sicut sunt retonsores deriarinruno’ Bract. L. 3. c
3. § 2. Fleta, L. 1. c. 22 § 4 Lord Hale thinks it was
deemed petty treason at common law. 1 H. P. C. 220, 224. The
bringing in false money with intent to merchandise, and make
payment of it is treason, by 25 E. 3. But the best proof of
the intention, is the act of passing it, and why not leave
room for repentance here, as in other cases of felonies
intended? I H P. C. 229.
** 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. Æthelst. 6. But LI. Cnuti, 61. make it a ‘scetus
inexpiable.’ ‘Hus brec and baernet and open thyfth and
asbereniorth and hlaford swice after woruld laga is
boileds.’ Word for word, ‘House break and burnt, and open
theft, and manifest murdher, and lord-treachery, after
world’s law is bootless.’ Bracton says, it was punished by
death. ‘Si quis turbida seditione iricendium fecerit
nequiter et in felonia, vel ob inimicitias, vel praedandi
causa, capital puniatur pcena vel sententia.’ Bract. L. 3.
c. 27. He defines it as commissible by burning ‘cedes alien
as.’ Ib. Britton, c. 9. ‘Ausi soitenquis de ceux que
felonise-ment en temps de pees eient a litre blees ou autre
messons ars, et ceux que ser-rount de ceo alteyniz, soient
ars issint que eux soient punys par mesme cele chose dount
ils pecherent.’ Fleia, L. I. c. 37. is a copy of Bracton.
The Mirror, c. 1. § 8. says, ‘Ardours sont que ardent cilie,
ville, maison home, maison beast, ou auters chatelx, de lour
felonie en temps de pace pour haine ou vengeance.’ Again, c.
2. § II., pointing oul the words of the appellor ‘jeo dise
que Sebright, &c. entiel meas. on ou hiens mist de feu.’
Coke, 3 Inst. 67. says, ‘The ancient authors extended this
felony further than houses, viz. to stacks of corn, waynes
or carts of coal, wood, or other goods.’ He defines it as
commissibie, not only on the inset houses, parcel of the
mansion-house, but the outset also, as barn, stable, 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
§ 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. Ælhelst. 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. Æthelst. 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. Æthelst. inter 924 and 940, we find it
punishable with death as above. So it was inter 1017 and
1035, i. e. temp. Cnuti. LI. Cnuti 61. cited in notes on
Arson. In the time of William the Conqueror, it seems lo
have been made punishable by fine only. LI. Gul. Cohq. apud
Wilk. p. 218. 220. This commutation, however, was taken away
by LI. H. 1. anno 1108. ‘Si quis in furto vel latro-cinio
deprehensus fuisset, suspenderetur: sublata wirgildorum, id
est, pecu-niarse redemptions lege.’ Larceny is the felonious
taking and carrying away of the personal goods of another.
1. As to the taking, the 3 & 4 VV. M. c. 9. § 5, is not
additional to the Common law, but declaratory of it; because
where only the care or use, and not the possession, of
things is delivered, to take them was larceny at the Common
law. The 33 H. 6. c. 1 and 21 11. 8. c. 7., indeed., have
added to the Common law by making it larceny in a servant to
convert things of his master’s. But quære, if they should be
imitated more than as to other breaches of trust in general.
2. As to the subject of larceny, 4 G. 2. c.32; 6 G. 3. c. 36
48; 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, quære,
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 §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. § 4; 5 Ann. c. 31. § 5; 4 G. 1. c.
11. § 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. § 4. Britt. c.
11. Fleta, L. 1. c. 26. § 4. Yet in the Y. B. Hill. 1 H. 7.
2. Hussey says, that, by the opinion of Billing and Choke,
and all the Justices, it was a felony in strangers only, but
not in the prisoner himself. S. C. Fitz. Abr. Co-ron. 48.
They are principal felons, not accessaries, ib. Whether it
was felony in the prisoner at Common law, is doubted. Stam.
P. C. 30. b. The Mirror c. 5. § 1. says, ‘Abusion est a
tener escape de prisoner, ou de bruserie del gaole pur peche
mortal 1, car eel usage nest garrant per nul ley, ne in nul
part est use forsque in cest realme, et en France, ems
[mais] est leu garrantie de ceo faire per la ley de nature’
2 Inst. 589. The stat. 1 E. 2, ‘de fragentibus priso-nam,’
‘restrained the judgment of life and limb for prison-
breaking, to cases where the offence of the prisoner
required such judgment.’
It is not only vain but wicked, in a legislator to frame
laws in opposition to the laws of nature, and to arm them
with the terrors of death. This is truly creating crimes in
order to punish them. The law of nature impels every one to
escape from confinement; it should not, therefore, be
subjected to punishment. Let the legislator restrain his
criminal by walls, not by parchment. As to strangers
breaking prison to enlarge an offender, they should, and may
be fairly considered as accessaries after the fact. This
bill saying nothing of the prisoner releasing himself by
breach of jail, he will have the benefit of the first
section of the bill, which repeals the judgment of life and
death at the Common law.
All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, enchantment, or sorcery, or by pretended prophecies, shall be punished by ducking and whipping, at the discretion of a jury, not, exceeding fifteen stripes.*
* ‘Gifwiecan owwe wigleras mansworan, owwe morthwyrhtan owwe
fule afylede eebere horcwenan ahwhar on lande wurthan
agytene, thonne fyrsie man of earde, and claensie lha.
theode, owwe on earde forfare hi mid ealle, buton hi
geswican and the deoper gebetan:’ ‘if witches, or weirds,
man-swearers, or murther-wroughters, or foul, defiled, open
whore-queens, ay—where in the land were gotten, then force
them off earth, and cleanse the nation, or in earth forth-
fare them withal, buton they beseech, and deeply better.’
LI. Ed. et Guthr. c. 11. ‘Saga; mulieres barbara
factitantes sacrificia, aut pestiferi, si cui mortem
intulerint, neque id inficiari poterint, capitis pcena
esto.’ LI. Aethelst. c. 6. apud Lambard. LI. Aelfr. 30. LI.
Cnuti. c. 4. ‘Mesmo eel jugement (d’etrears) eyent
sorcers, et sorceresses,’ &c. ut supra. Fleta tit et ubi
supra. 3 Inst. 44. Trial of witches before Hale, in 1664.
The statutes 33 H. 8. c. 8. 5. El. c. 16 and 1. Jac. 1. c.
12. seem to be only in confirmation of the Common law. 9 G.
2. c. 25. punishes them with pillory and a year’s
imprisonment 3 E. 6 c 15. 5 El. c. 15. punish fond,
fantastical, and false prophecies, by fine and imprisonment.
If the principal offenders be fled,* or secreted from justice, in any case not touching life or member, the accessaries may, notwithstanding, be prosecuted as if their principal were convicted.**
* 1 Ann. c. 9. § 2.
**As every treason includes within it a misprision of
treason, so every felony includes a misprision, or
misdemeanor. 1 Hale P. C. 652. 75S. ‘Licet fuerit felonia,
tamen in eo continetur misprisio.’ 2 R. 3.10. Both principal
and accessary, therefore, may be proceeded against in any
case, either for felony, or misprision, at the Common law.
Capital cases not being mentioned here, accessaries to them
will of course be triable for misprisions, if the offender
flies.
If any offender stand mute of obstinacy,* or challenge preremp-torily more of the jurors than by law he may, being first warned of the consequence thereof, the court shall proceed as if he had confessed the charge,**
* 3E. I.e. 12.
** Whether the judgment of penance lay at Common law. See 2
Inst. 178.2. H. P. C. 321. 4 Bl. 322. It was given on
standing mute: but on challenging more than the legal
number, whether that sentence, or sentence of death is to be
given, seems doubtful. 2 H. P. C. 316. Quære, whether it
would not be better to consider the supernumerary challenge
as merely void, and to proceed in the trial. Quære too, in
case of silence.
Pardon and privilege of clergy shall henceforth be abolished, that none may be induced to injure through hope of impunity. But if the verdict be against the defendant, and the court, before whom the offence is heard and determined, shall doubt that it may be untrue for defect of testimony, or other cause, they may direct a new trial to be had.*
* ‘Cum Clericus sic de crimine convictus degradetur, non
sequitur aliapoe-na pro uno delicto, vel pluribus ante
degradationem perpetratis. Satis enim sufficit ei pro pcena
degradatio, quse est magna capitis diminutio, nisi forte
convictus fuerit de apostatia, quia hinc primo degradetur,
et postea per manum laicalem comburetur, secundum quod
accidit in concilio Oxoni celebrato a bonas memoriae S.
Cantuaren. Archiepiscopo de quodam diacono, qui seapos-
tatavit pro quadam Judaea; qui cum esset per episcopum
degradatus, statim fuit igni traditus per manum laicalem.’
Bract. L. 3. c. 9. § 2. ‘Et mesme eel jugement (i. e. qui
ils soient ars) eye n’t sorcers et sorceresses, et sodomites
et mescreauntz apertement atteyntz.’ Britt. c. 9.
‘Christiani autem Apostatae, sortilegii, et hujusmodi
detractari debent et comburi.’ Fleta, L. 1. c. 37. § 2. see
3 Inst. 39; 12 Rep. 92; 1 H. P. C. 393. The extent of the
clerical privilege at the Common law, 1. As to the crimes,
seems very obscure and uncertain. It extended to no case
where the judgment was not of life or limb. Note in 2. H. P.
C. 326. This, therefore, excluded it in trespass, petty
larceny, or killing se defendendo. In high treason against
the person of the King, it seems not to have been allowed.
Note 1 H. P. C. 185. Treasons, therefore, not against the
King’s person immediately, petty treasons and felonies, seem
to have been the cases where it was allowed; and even of
those, not for insidiatio viarum, depopulatio agrorum, or
combustio domorum. The statute de Clero, 25 E. 3. st. 3. c.
4. settled the law on this head. 2. As to the persons, it
extended to all clerks, always, and toties quoiies. 2 H. P.
C. 374. To nuns also. Fitz. Abr. Coron. 461. 22 E. 3. The
clerical habit and tonsure were considered as evidence of
the person being clerical. 26 Assiz. 19 & 20 E. 2. Fitz.
Coron. 233. By the 9 E. 4. 28. b. 34 H. 6. 49. a. b. simple
reading became the evidence. This extended impunity to a
great number of laymen, and toties quoties. The stat. 4 H.
7. c. 13. directed that real clerks should upon a second
arraignment, produce their orders, and all others to be
burnt in the hand with M. or T. on the first allowance of
clergy, and not to be admitted to it a second time. A
heretic, Jew, or Turk, (as being incapable of orders) could
not have clergy. H Co. Rep. 29. b. But a Greek, or other
alien, reading in a book of his own country, might. Bro.
Clergie. 20. So a blind man, if he could speak Latin. Ib.
21. qu, 11. Rep. 29. b. The orders entitling the party were
bishops, priests, deacons, and sub-deacons, the inferior
being reckoned Clerici in minoribus. 2 H. P. C. 373. Quære,
however, if this distinction is not founded on the stat. 23.
H. 8. c. 1; 25. H. 8. c. 32. By merely dropping all the
statutes, it should seem that none but clerks would be
entitled to this privilege, and that they would, toties
quoties.
No attainder shall work corruption of blood in any case.
In all cases of forfeiture, the widow’s dower shall be saved to her, during her title thereto; after which it shall be disposed of as if no such saving had been.
The aid of Counsel,* and examination of their witnesses on oath, shall be allowed to defendants in criminal prosecutions.
* 1 Ann. c. 9.
Slaves guilty of any offence* punishable in others by labor in the public works, shall be transported to such parts in the West Indies, South America, or Africa, as the Governor shall direct, there to be continued in slavery.
* Manslaghter, counterfeiting, arson, asportation of
vessels, robbery, burglary, house-breaking, horse-stealing,
larceny.