* 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.

[NOTE F.]--Coinage for the United States

_On the Establishment of a Money Unit, and of a Coinage for the

United States_.

In fixing the Unit of Money, these circumstances are of principal

importance.

I. That it be of _convenient_ size to be applied as a measure to the

common money transactions of life.

II. That its parts and multiplies be in an _easy proportion_ to each

other, so as to facilitate the money arithmetic;

III. That the Unit and its parts, or divisions, be _so nearly of the

value of some of the known coins_, as that they may be of easy adoption

for the people.

The Spanish Dollar seems to fulfil all these conditions.

I. Taking into our view all money transactions, great and small, I

question if a common measure of more _convenient size_ than the Dollar

could be proposed. The value of 100, 1000, 10,000 dollars is well

estimated by the mind; so is that of the tenth or the hundredth of a

dollar. Few transactions are above or below these limits. The expediency

of attending to the size of the Money Unit will be evident to any one

who will consider how inconvenient it would be to a manufacturer or

merchant, if instead of the yard for measuring cloth, either the inch or

the mile had been made the Unit of Measure.

II. The most _easy ratio_ of multiplication and division is that by ten.

Every one knows the facility of Decimal Arithmetic. Every one remembers,

that, when learning Money-Arithmetic, he used to be puzzled with adding

the farthings, taking out the fours and carrying them on; adding

the pence, taking out the twelves and carrying them on; adding the

shillings, taking out the twenties and carrying them on; but when he

came to the pounds, where he had only tens to carry forward, it was easy

and free from error. The bulk of mankind are school-boys through

life. These little perplexities are always great to them. And even

mathematical heads feel the relief of an easier, substituted for a more

difficult process. Foreigners, too, who trade or travel among us, will

find a great facility in understanding our coins and accounts from this

ratio of subdivision. Those who have had occasion to convert the Livres,

sols, and deniers of the French; the Gilders, stivers, and frenings of

the Dutch; the Pounds, shillings, pence, and farthings of these several

States, into each other, can judge how much they would have been aided,

had their several subdivisions been in a decimal ratio. Certainly, in

all cases, where we are free to choose between easy and difficult modes

of operation, it is most rational to choose the easy. The Financier,

therefore, in his report, well proposes that our Coins should be in

decimal proportions to one another. If we adopt the Dollar for our Unit,

we should strike four coins, one of gold, two of silver, and one of

copper, viz.

1. A golden piece, equal in value to ten dollars:

2. The Unit or Dollar itself, of silver:

3. The tenth of a Dollar, of silver also:

4. The hundreth of a Dollar, of copper.

Compare the arithmetical operations, on the same sum of money expressed

in this form, and expressed in the pound sterling and its divisions.

A bare inspection of the above operations, will evince the labor which

is occasioned by subdividing the Unit into 20ths, 240ths, and 960ths,

as the English do, and as we have done; and the ease of subdivision in

a decimal ratio. The same difference arises in making payment. An

Englishman, to pay £8 13s. 11d. 1/2qrs. must find, by calculation,

what combination of the coins of his country will pay this sum; but an

American, having the same sum to pay, thus expressed $38.65, will know,

by inspection only, that three golden pieces, eight units or dollars,

six tenths, and five coppers, pay it precisely.

III. The third condition required is, that the Unit, its multiples, and

subdivisions, coincide in value with some of the known coins so nearly,

that the people may, by a quick reference in the mind, estimate their

value. If this be not attended to, they will be very long in adopting

the innovation, if ever they adopt it. Let us examine, in this point of

view, each of the four coins proposed.

1. The golden piece will be 1/5 more than a half joe and 1/15 more than

a double guinea. It will be readily estimated, then, by reference to

either of them; but more readily and accurately as equal to ten dollars.

2. The Unit, or Dollar, is a known coin, and the most familiar of all to

the minds of the people. It is already adopted from South to North; has

identified our currency, and therefore happily offers itself as a

Unit already introduced. Our public debt, our requisitions, and their

apportionments, have given it actual and long possession of the place of

Unit. The course of our commerce, too, will bring us more of this than

of any other foreign coin, and therefore renders it more worthy of

attention. I know of no Unit which can be proposed in competition with

the Dollar, but the Pound. But what is the Pound? 1547 grains of fine

silver in Georgia; 1289 grains in Virginia, Connecticut, Rhode Island,

Massachusetts, and New Hampshire; 1031 grains in Maryland, Delaware,

Pennsylvania, and New Jersey; 966 grains in North Carolina and New York.

Which of these shall we adopt? To which State give that pre-eminence of

which all are so jealous? And on which impose the difficulties of a new

estimate of their corn, their cattle, and other commodities? Or shall we

hang the pound sterling, as a common badge, about all their necks? This

contains 1718 grains of pure silver. It is difficult to familiarize a

new coin to the people; it is more difficult to familiarize them to a

new coin with an old name. Happily, the Dollar is familiar to them all,

and is already as much referred to for a measure of value, as their

respective provincial pounds.

3. The tenth will be precisely the Spanish bit, or half pistereen. This

is a coin perfectly familiar to us all. When we shall make a new coin,

then, equal in value to this, it will be of ready estimate with the

people.

4. The hundredth, or copper, will differ little from the copper of the

four Eastern States, which is 1/108 of a dollar; still less from the

penny of New York and North Carolina, which is 1/96 of a dollar;

and somewhat more from the penny or copper of Jersey, Pennsylvania,

Delaware, and Maryland, which is 1/90 of a dollar. It will be about the

medium between the old and the new coppers of these States, and will

therefore soon be substituted for them both. In Virginia, coppers have

never been in use. It will be as easy, therefore, to introduce them

there of one value as of another. The copper coin proposed, will be

nearly equal to three fourths of their penny, which is the same with the

penny lawful of the Eastern States.

A great deal of small change is useful in a State, and tends to reduce

the price of small articles. Perhaps it would not be amiss to coin

three, more pieces of silver, one of the value of five tenths, or half

a dollar, one of the value of two tenths, which would be equal to the

Spanish pistereen, and one of the value of five coppers, which would be

equal to the Spanish half-bit. We should then have five silver coins,

viz.

1. The Unit or Dollar:

2. The half dollar or five tenths:

3. The double tenth, equal to 2/10, or one fifth of a dollar, or to the

pistereen:

4. The tenth, equal to a Spanish bit:

5. The five copper piece, equal to 5/100 or one twentieth of a dollar,

or the half-bit.

The plan reported by the Financier is worthy of his sound judgment. It

admits, however, of objection, in the size of the Unit. He proposes that

this shall be the 1440th part of a dollar; so that it will require 1440

of his units to make the one before proposed. He was led to adopt this

by a mathematical attention to our old currencies, all of which this

Unit will measure without leaving a fraction. But as our object is to

get rid of those currencies, the advantage derived from this coincidence

will soon be past, whereas the inconveniences of this Unit will for

ever remain, if they do not altogether prevent its introduction. It

is defective in two of the three requisites of a Money Unit. 1. It is

inconvenient in its application to the ordinary money transactions.

10,000 dollars will require eight figures to express them, to wit,

14,400,000 units. A horse or bullock of eighty dollars’ value, will

require a notation of six figures, to wit, 115,200 units. As a money

of account, this will be laborious, even when facilitated by the aid

of decimal arithmetic: as a common measure of the value of property,

it will be too minute to be comprehended by the people. The French are

subjected to very laborious calculations, the Livre being their ordinary

money of account, and this but between 1/5 and 1/6 of a dollar; but what

will be our labors, should our money of account be 1/1440 of a dollar

only? 2. It is neither equal, nor near to any of the known coins in

value.

If we determine that a Dollar shall be our Unit, we must then say with

precision what a Dollar is. This coin, struck at different times,

of different weights and fineness, is of different values. Sir Isaac

Newton’s assay and representation to the Lords of the Treasury, in 1717,

of those which he examined, make their values as follows:

[Illustration: Sir Isaac Newton’s Assay, page137]

The Seville piece of eight . . . . 387 grains of pure silver

The Mexico piece of eight . . . . 385 1/2 ”

The Pillar piece of eight . . . . 385 3/4 ”

The new Seville piece of eight . . 308 7/10 ”

The Financier states the old Dollar as containing 376 grains of fine

silver, and the new 365 grains. If the Dollars circulating among us be

of every date equally, we should examine the quantity of pure metal in

each, and from them form an average for our Unit. This is a work proper

to be committed to mathematicians as well as merchants, and which should

be decided on actual and accurate experiment.

Memoir, Correspondence, and Miscellanies, From the Papers of Thomas Jefferson, Volume 1 · 第 15 / 47 段