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]
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.
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_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.
***** 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.