Public Papers
        by Thomas Jefferson

 
        _Resolutions of Congress on Lord North's Conciliatory Proposal_
 
        IN CONGRESS

        THE SEVERAL Assemblies of NEW JERSEY, PENNSYLVANIA and
VIRGINIA, having referred to the Congress a resolution of the House
of Commons of GREAT BRITAIN, which resolution is in these words, viz.
 
        _Lunae, 20 degrees die Feb. 1775.

        _The House in a Committee on the American papers.  Motion made,
and question proposed._

        THAT _it is the opinion of this Committee, that when the
General Council and Assembly, or General Court of any of his
Majesty's provinces, or colonies in America, shall propose to make
provision, according to the condition, circumstance, or situation of
such province or colony, for contributing their proportion to the
common defence (such proportion to be raised under the authority of
the General Court, or General Assembly of such province or colony,
and disposable by Parliament) and shall engage to make provision
also, for the support of the civil government, and the Administration
of justice in such province or colony, it will be proper if such
proposal shall be approved by his Majesty and the two Houses of
Parliament; and for so long as such provision shall be made
accordingly, to forbear in respect of such province or colony, to lay
any duty, tax, or assessment, or to impose any further duty, tax or
assessment, except only such duties as it may be expedient to
continue to levy or impose, for the regulation of commerce, the net
produce of the duties last mentioned, to be carried to the account of
such province or colony respectively._

        The Congress took the said resolution into consideration, and
are thereupon of opinion:

        That the colonies of America are entitled to the sole and
exclusive privilege of giving and granting their own money; that this
involves a right of deliberating whether they will make any gift, for
what purposes it shall be made, and what shall be it's amount; and
that it is a high breach of this privilege for any body of men,
extraneous to their constitutions, to prescribe the purposes for
which money shall be levied on them, to take to themselves the
authority of judging of their conditions, circumstances and
situations; and of determining the amount of the contribution to be
levied.

        That as the colonies possess a right of appropriating their
gifts, so are they entitled at all times to enquire into their
application, to see that they be not wasted among the venal and
corrupt for the purpose of undermining the civil rights of the
givers, nor yet be diverted to the support of standing armies,
inconsistent with their freedom and subversive of their quiet.  To
propose therefore, as this resolution does, that the monies given by
the colonies shall be subject to the disposal of parliament alone, is
to propose that they shall relinquish this right of enquiry, and put
it in the power of others to render their gifts, ruinous, in
proportion as they are liberal.

        That this privilege of giving or of withholding our monies is
an important barrier against the undue exertion of prerogative, which
if left altogether without controul may be exercised to our great
oppression; and all history shews how efficacious is its intercession
for redress of grievances and re-establishment of rights, and how
improvident it would be to part with so powerful a mediator.

        We are of opinion that the proposition contained in this
resolution is unreasonable and insidious: unreasonable, because, if
we declare we accede to it, we declare without reservation, we will
purchase the favour of Parliament, not knowing at the same time at
what price they will please to estimate their favor: It is insidious,
because, individual colonies, having bid and bidden again, till they
find the avidity of the seller too great for all their powers to
satisfy; are then to return into opposition, divided from their
sister colonies whom the minister will have previously detached by a
grant of easier terms, or by an artful procrastination of a
definitive answer.

        That the suspension of the exercise of their pretended power of
taxation being expressly made commensurate with the continuance of
our gifts, these must be perpetual to make that so.  Whereas no
experience has shewn that a gift of perpetual revenue secures a
perpetual return of duty or of kind disposition.  On the contrary,
the Parliament itself, wisely attentive to this observation, are in
the established practice of granting their supplies from year to year
only.

        Desirous and determined as we are to consider in the most
dispassionate view every seeming advance towards a reconciliation
made by the British Parliament, let our brethren of Britain reflect
what would have been the sacrifice to men of free spirits had even
fair terms been proffered, as these insidious proposals were with
circumstances of insult and defiance.  A proposition to give our
money, accompanied with large fleets and armies, seems addressed to
our fears rather than to our freedom.  With what patience would
Britons have received articles of treaty from any power on earth when
borne on the point of a bayonet by military plenipotentiaries?

        We think the attempt unnecessary to raise upon us by force or
by threats our proportional contributions to the common defence, when
all know, and themselves acknowledge we have fully contributed,
whenever called upon to do so in the character of freemen.

        We are of opinion it is not just that the colonies should be
required to oblige themselves to other contributions, while Great
Britain possesses a monopoly of their trade.  This of itself lays
them under heavy contribution.  To demand therefore, additional aids
in the form of a tax, is to demand the double of their equal
proportion, if we are to contribute equally with the other parts of
the empire, let us equally with them enjoy free commerce with the
whole world.  But while the restrictions on our trade shut to us the
resources of wealth, is it just we should bear all other burthens
equally with those to whom every resource is open.

        We conceive that the British Parliament has no right to
intermeddle with our provisions for the support of civil government,
or administration of justice.  The provisions we have made are such
as please ourselves, and are agreeable to our own circumstances; they
answer the substantial purposes of government and of justice, and
other purposes than these should not be answered.  We do not mean
that our people shall be burthened with oppressive taxes to provide
sinecures for the idle or the wicked, under colour of providing for a
civil list.  While Parliament pursue their plan of civil government
within their own jurisdiction, we also hope to pursue ours without
molestation.

        We are of opinion the proposition is altogether unsatisfactory
because it imports only a suspension of the mode, not a renunciation
of the pretended right to tax us: Because too it does not propose to
repeal the several Acts of Parliament passed for the purposes of
restraining the trade and altering the form of government of one of
our Colonies; extending the boundaries and changing the government of
Quebec; enlarging the jurisdiction of the Courts of Admiralty and
Vice Admiralty; taking from us the rights of trial by a Jury of the
vicinage in cases affecting both life and property; transporting us
into other countries to be tried for criminal offences; exempting by
mock-trial the murderers of Colonists from punishment; and quartering
soldiers on us in times of profound peace.  Nor do they renounce the
power of suspending our own Legislatures, and of legislating for us
themselves in all cases whatsoever.  On the contrary, to shew they
mean no discontinuance of injury, they pass acts, at the very time of
holding out this proposition, for restraining the commerce and
fisheries of the Provinces of New-England, and for interdicting the
trade of other Colonies with all foreign nations and with each other.
This proves unequivocally they mean not to relinquish the exercise of
indiscriminate legislation over us.

        Upon the whole, this proposition seems to have been held up to
the world, to deceive it into a belief that there was nothing in
dispute between us but the _mode_ of levying taxes; and that the
Parliament having now been so good as to give up this, the Colonies
are unreasonable if not perfectly satisfied: Whereas in truth, our
adversaries still claim a right of demanding _ad libitum_, and of
taxing us themselves to the full amount of their demand, if we do not
comply with it.  This leaves us without any thing we can call
property.  But, what is of more importance, and what in this proposal
they keep out of sight, as if no such point was now in contest
between us, they claim a right to alter our Charters and established
laws, and leave us without any security for our Lives or Liberties.
The proposition seems also to have been calculated more particularly
to lull into fatal security our well-affected fellow subjects on the
other side the water, till time should be given for the operation of
those arms, which a British Minister pronounced would instantaneously
reduce the "cowardly" sons of America to unreserved submission.  But
when the world reflects, how inadequate to justice are these vaunted
terms; when it attends to the rapid and bold succession of injuries,
which, during a course of eleven years, have been aimed at these
Colonies; when it reviews the pacific and respectful expostulations,
which, during that whole time, were the sole arms we opposed to them;
when it observes that our complaints were either not heard at all, or
were answered with new and accumulated injury; when it recollects
that the Minister himself on an early occasion declared, "that he
would never treat with America, till he had brought her to his feet,"
and that an avowed partisan of Ministry has morelately denounced
against us the dreadful sentence _"delenda est Carthago,"_ that this
was done in presence of a British Senate, and being unreproved by
them, must be taken to be theirown sentiment, (especially as the
purpose has already in part been carried into execution by their
treatment of Boston, and burning of Charlestown) when it considers
the great armaments with which they have invaded us, and the
circumstances of cruelty with which these have commenced and
prosecuted hostilities; when these things, we say, are laid together,
and attentively considered, can the world be deceived into an opinion
that we are unreasonable, or can it hesitate to believe with us, that
nothing but our own exertions may defeat the ministerial sentence of
death or abject submission.

        _By Order of the Congress,_
        JOHN HANCOCK, _President._
        _Philadelphia, July 31, 1775_.
 
 
 
        _Draft Constitution for Virginia_
        [_June, 1776._]
 
        FAIR COPY

        [_A Bil_]l for new-modelling the form of Government and for
establishing the Fundamental principles thereof in future.

        Whereas George
        Guelf king of Great Britain and Ireland and Elector of Hanover,
heretofore entrusted with the exercise of the kingly office in this
government hath endeavored to pervert the same into a detestable and
insupportable tyranny;
        by putting his negative on laws the most wholesome & necessary
for ye public good;
        by denying to his governors permission to pass laws of
immediate and pressing importance, unless suspended in their
operations for his assent, and, when so suspended, neglecting to
attend to them for many years;
        by refusing to pass certain other laws, unless the person to be
benefited by them would relinquish the inestimable right of
representation in the legislature
        by dissolving legislative assemblies repeatedly and continually
for opposing with manly firmness his invasions on the rights of the
people;
        when dissolved, by refusing to call others for a long space of
time, thereby leaving the political system without any legislative
head;
        by endeavoring to prevent the population of our country, & for
that purpose obstructing the laws for the naturalization of
foreigners & raising the condition [_lacking appro_]priations of
lands;
        [_by keeping among u_]s, in times of peace, standing armies and
ships of war;
        [_lacking_]ing to render the military independent of & superior
to the civil power;
        by combining with others to subject us to a foreign
jurisdiction, giving his assent to their pretended acts of
legislation.
        for quartering large bodies of troops among us;
        for cutting off our trade with all parts of the world;

 
        for imposing taxes on us without our consent;
        for depriving us of the benefits of trial by jury;
        for transporting us beyond seas to be tried for pretended
offences; and
        for suspending our own legislatures & declaring themselves
invested with power to legislate for us in all cases whatsoever;
        by plundering our seas, ravaging our coasts, burning our towns
and destroying the lives of our people;
        by inciting insurrections of our fellow subjects with the
allurements of forfeiture & confiscation;
        by prompting our negroes to rise in arms among us; those very
negroes whom *he hath from time to time* by an inhuman use of his
negative he hath refused permission to exclude by law;
        by endeavoring to bring on the inhabitants of our frontiers the
merciless Indian savages, whose known rule of warfare is an
undistinguished destruction of all ages, sexes, & conditions of
existence;
        by transporting at this time a large army of foreign
mercenaries [_to complete_] the works of death, desolation & tyranny
already begun with circum[_stances_] of cruelty & perfidy so unworthy
the head of a civilized nation;
        by answering our repeated petitions for redress with a
repetition of injuries;
        and finally by abandoning the helm of government and declaring
us out of his allegiance & protection;
        by which several acts of misrule the said George
        Guelf has forfeited the kingly office and has rendered it
necessary for the preservation of the people that he should be
immediately deposed from the same, and divested of all its
privileges, powers, & prerogatives:

        And forasmuch as the public liberty may be more certainly
secured by abolishing an office which all experience hath shewn to be
inveterately inimical thereto *or which* and it will thereupon become
further necessary to re-establish such ancient principles as are
friendly to the rights of the people and to declare certain others
which may co-operate with and fortify the same in future.

        Be it therefore enacted by the authority of the people that the
said, George Guelf be, and he hereby is deposed from the kingly
office within this government and absolutely divested of all it's
rights, powers, and prerogatives: and that he and his descendants and
all persons acting by or through him, and all other persons
whatsoever shall be and forever remain incapable of the same: and
that the said office shall henceforth cease and never more either in
name or substance be re-established within this colony.

        And be it further enacted by the authority aforesaid that the
following fundamental laws and principles of government shall
henceforth be established.

        The Legislative, Executive and Judiciary offices shall be kept
forever separate; no person exercising the one shall be capable of
appointment to the others, or to either of them.

        I. LEGISLATIVE.
        Legislation shall be exercised by two separate houses, to wit a
house of Representatives, and a house of Senators, which shall be
called the General Assembly of Virginia.

        Ho. of Representatives
        The sd house of Representatives shall be composed of persons
chosen by the people annually on the [1st day of October] and shall
meet in General assembly on the [1st day of November] following and
so from time to time on their own adjournments, or at any time when
summoned by the Administrator and shall continue sitting so long as
they shall think the publick service requires.

        Vacancies in the said house by death or disqualification shall
be filled by the electors under a warrant from the Speaker of the
said house.

        Electors
        All male persons of full age and sane mind having a freehold
estate in [one fourth of an acre] of land in any town, or in [25]
acres of land in the country, and all
        Elected
        persons resident in the colony who shall have paid scot and lot
to government the last [two years] shall have right to give their
vote in the election of their respective representatives.  And every
person so qualified to elect shall be capable of being elected,
provided he shall have given no bribe either directly or indirectly
to any elector, and shall take an oath of fidelity to the state and
of duty in his office, before he enters on the exercise thereof.
During his continuance in the said office he shall hold no public
pension nor post of profit, either himself, or by another for his
use.

        The number of Representatives for each county or borough shall
be so proportioned to the numbers of it's qualified electors that the
whole number of representatives shall not exceed [300] nor be less
than [125.] for the present there shall be one representative for
every [ ] qualified electors in each county or borough: but whenever
this or any future proportion shall be likely to exceed or fall short
of the limits beforementioned, it shall be again adjusted by the
house of representatives.

        The house of Representatives when met shall be free to act
according to their own judgment and conscience.

        Senate
        The Senate shall consist of not less than [15] nor more than
[50] members who shall be appointed by the house of Representatives.
One third of them shall be removed out of office by lot at the end of
the first [three] years and their places be supplied by a new
appointment; one other third shall be removed by lot in like manner
at the end of the second [three] years and their places be supplied
by a new appointment; after which one third shall be removed annually
at the end of every [three] years according to seniority.  When once
removed, they shall be forever incapable of being re-appointed to
that house.  Their qualifications shall be an oath of fidelity to the
state, and of duty in their office, the being [31] years of age at
the least, and the having given no bribe directly or indirectly to
obtain their appointment.  While in the senatorial office they shall
be incapable of holding any public pension or post of profit either
themselves, or by others for their use.

        The judges of the General court and of the High court of
Chancery shall have session and deliberative voice, but not suffrage
in the house of Senators.

        The Senate and the house of representatives shall each of them
have power to originate and amend bills; save only that bills for
levying money *bills* shall be originated and amended by the
representatives only: the assent of both houses shall be requisite to
pass a law.

        The General assembly shall have no power to pass any law
inflicting death for any crime, excepting murder, & *such* those
offences in the military service for which they shall think
punishment by death absolutely necessary: and all capital punishments
in other cases are hereby abolished.  Nor shall they have power to
prescribe torture in any case whatever: nor shall there be power
anywhere to pardon crimes or to remit fines or punishments: nor shall
any law for levying money be in force longer than [ten years] from
the time of its commencement.

        [Two thirds] of the members of either house shall be a Quorum
to proceed to business.

        II. EXECUTIVE.
        The executive powers shall be exercised in manner following.
 
        Administrator
        One person to be called the [Administrator] shall be annually
appointed by the house of Representatives on the second day of their
first session, who after having acted [one] year shall be incapable
of being again appointed to that office until he shall have been out
of the same [three] years.

        Deputy Admr.
        Under him shall be appointed by the same house and at the same
time, a Deputy-Administrator to assist his principal in the discharge
of his office, and to succeed, in case of his death before the year
shall have expired, to the whole powers thereof during the residue of
the year.

        The administrator shall possess the power formerly held by the
king: save only that, he shall be bound by acts of legislature tho'
not expressly named;
        he shall have no negative on the bills of the Legislature;
        he shall be liable to action, tho' not to personal restraint
for private duties or wrongs;
        he shall not possess the prerogatives;
        of dissolving, proroguing or adjourning either house of
Assembly;
        of declaring war or concluding peace;
        of issuing letters of marque or reprisal;
 
        of raising or introducing armed forces, building armed vessels,
forts or strongholds;
        of coining monies or regulating their values;
        of regulating weights and measures;
        of erecting courts, offices, boroughs, corporations, fairs,
markets, ports, beacons, lighthouses, seamarks.
        of laying embargoes, or prohibiting the exportation of any
commodity for a longer space than [40] days.
        of retaining or recalling a member of the state but by legal
process pro delicto vel contractu.
        of making denizens.
        *of pardoning crimes, or remitting fines or punishments.*
        of creating dignities or granting rights of precedence.
        but these powers shall be exercised by the legislature alone,
and excepting also those powers which by these fundamentals are given
to others, or abolished.

        Privy Council
        A Privy council shall be annually appointed by the house of
representatives whose duties it shall be to give advice to the
Administrator when called on by him.  With them the Deputy
Administrator shall have session and suffrage.

        Delegates
        Delegates to represent this colony in the American Congress
shall be appointed when necessary by the house of Representatives.
After serving [one] year in that office they shall not be capable of
being re-appointed to the same during an interval of [one] year.

        Treasurer
        A Treasurer shall be appointed by the house of Representatives
who shall issue no money but by authority of both houses.

        Attorney Genrl.
        An Attorney general shall be appointed by the house of
Representatives

        High Sheriffs, &c.
        High Sheriffs and Coroners of counties shall be annually
elected by those qualified to vote for representatives: and no person
who shall have served as high sheriff [one] year shall be capable of
being re-elected to the said office in the same county till he shall
have been out of office [five] years.
 
        Other Officers
        All other Officers civil and military shall be appointed by the
Administrator; but such appointment shall be subject to the negative
of the Privy council, saving however to the Legislature a power of
transferring to any other persons the appointment of such officers or
any of them.

        III. JUDICIARY.
        The Judiciary powers shall be exercised
        First, by County courts and other inferior jurisdictions:
        Secondly, by a General court & a High court of Chancery:
        Thirdly, by a Court of Appeals.

        County Courts, &c.
        The judges of the county courts and other inferior
jurisdictions shall be appointed by the Administrator, subject to the
negative of the privy council.  They shall not be fewer than [five]
in number.  Their jurisdictions shall be defined from time to time by
the legislature: and they shall be removable for misbehavior by the
court of Appeals.
 
        Genl. Court and High Ct. of Chancery
        The Judges of the General court and of the High court of
Chancery shall be appointed by the Administrator and Privy council.
If kept united they shall be [5] in number, if separate, there shall
be [5] for the General court & [3] for the High court of Chancery.
The appointment shall be made from the faculty of the law, and of
such persons of that faculty as shall have actually exercised the
same at the bar of some court or courts of record within this colony
for [seven] years.  They shall hold their commissions during good
behavior, for breach of which they shall be removable by the court of
Appeals.  Their jurisdiction shall be defined from time to time by
the Legislature.

        Court of Appeals
        The Court of Appeals shall consist of not less than [7] nor
more than [11] members, to be appointed by the house of
Representatives: they shall hold their offices during good behavior,
for breach of which they shall be removable by an act of the
legislature only.  Their jurisdiction shall be to determine finally
all causes removed before them from the General Court or High Court
of Chancery, or of the county courts or other inferior jurisdictions
for misbehavior: [to try impeachments against high offenders lodged
before them by the house of representatives for such crimes as shall
hereafter be precisely defined by the Legislature, and for the
punishment of which, the said legislature shall have previously
prescribed certain and determinate pains.] In this court the judges
of the General court and High court of Chancery shall have session
and deliberative voice, but no suffrage.

        Juries
        All facts in causes whether of Chancery, Common,
Ecclesiastical, or Marine law, shall be tried by a jury upon evidence
given viva voce, in open court: but where witnesses are out of the
colony or unable to attend through sickness or other invincible
necessity, their deposition may be submitted to the credit of the
jury.

        Fines, &c.
        All Fines or Amercements shall be assessed, & Terms of
imprisonment for Contempts & Misdemeanors shall be fixed by the
verdict of a Jury.

        Process
        All Process Original & Judicial shall run in the name of the
court from which it issues.

        Quorum
        Two thirds of the members of the General court, High court of
Chancery, or Court of Appeals shall be a Quorum to proceed to
business.

        IV. RIGHTS, PRIVATE AND PUBLIC.
        Lands
        Unappropriated or Forfeited lands shall be appropriated by the
Administrator with the consent of the Privy council.

        Every person of full age neither owning nor having owned [50]
acres of land, shall be entitled to an appropriation of [50] acres or
to so much as shall make up what he owns or has owned [50] acres in
full and absolute dominion.  And no other person shall be capable of
taking an appropriation.
 
        Lands heretofore holden of the crown in fee simple, and those
hereafter to be appropriated shall be holden in full and absolute
dominion, of no superior whatever.
 
        No lands shall be appropriated until purchased of the Indian
native proprietors; nor shall any purchases be made of them but on
behalf of the public, by authority of acts of the General assembly to
be passed for every purchase specially.
 
        The territories contained within the charters erecting the
colonies of Maryland, Pennsylvania, North and South Carolina, are
hereby ceeded, released, & forever confirmed to the people of those
colonies respectively, with all the rights of property, jurisdiction
and government and all other rights whatsoever which might at any
time heretofore have been claimed by this colony.  The Western and
Northern extent of this country shall in all other respects stand as
fixed by the charter of
 
        until by act of the Legislature one or more territories shall
be laid off Westward of the Alleghaney mountains for new colonies,
which colonies shall be established on the same fundamental laws
contained in this instrument, and shall be free and independent of
this colony and of all the world.

        Descents shall go according to the laws Gavelkind, save only
that females shall have equal rights with males.

        Slaves
        No person hereafter coming into this county shall be held
within the same in slavery under any pretext whatever.

        Naturalization
        All persons who by their own oath or affirmation, or by other
testimony shall give satisfactory proof to any court of record in
this colony that they propose to reside in the same [7] years at the
least and who shall subscribe the fundamental laws, shall be
considered as residents and entitled to all the rights of persons
natural born.

        Religion
        All persons shall have full and free liberty of religious
opinion; nor shall any be compelled to frequent or maintain any
religious institution.

        Arms
        No freeman shall be debarred the use of arms [within his own
lands].

        Standing Armies
        There shall be no standing army but in time of actual war.

        Free Press
        Printing presses shall be free, except so far as by commission
of private injury cause may be given of private action.

        Forfeitures
        All Forfeitures heretofore going to the king, shall go the
state; save only such as the legislature may hereafter abolish.

 
        Wrecks
        The royal claim to Wrecks, waifs, strays, treasure-trove, royal
mines, royal fish, royal birds, are declared to have been usurpations
on common right.

        Salaries
        No Salaries or Perquisites shall be given to any officer but by
some future act of the legislature.  No salaries shall be given to
the Administrator, members of the legislative houses, judges of the
court of Appeals, judges of the County courts, or other inferior
jurisdictions, Privy counsellors, or Delegates to the American
Congress: but the reasonable expences of the Administrator, members
of the house of representatives, judges of the court of Appeals,
Privy counsellors, & Delegates for subsistence while acting in the
duties of their office, may be borne by the public, if the
legislature shall so direct.

        Qualifications
        No person shall be capable of acting in any office Civil,
Military [or Ecclesiastical] *The Qualifications of all not otherwise
directed, shall be an oath of fidelity to state and the having given
no bribe to obtain their office* who shall have given any bribe to
obtain such office, or who shall not previously take an oath of
fidelity to the state.

        None of these fundamental laws and principles of government
shall be repealed or altered, but by the personal consent of the
people on summons to meet in their respective counties on one and the
same day by an act of Legislature to be passed for every special
occasion: and if in such county meetings the people of two thirds of
the counties shall give their suffrage for any particular alteration
or repeal referred to them by the said act, the same shall be
accordingly repealed or altered, and such repeal or alteration shall
take it's place among these fundamentals and stand on the same
footing with them, in lieu of the article repealed or altered.

        The laws heretofore in force in this colony shall remain in
force, except so far as they are altered by the foregoing fundamental
laws, or so far as they may be hereafter altered by acts of the
Legislature.

 
 
        REVISAL OF THE LAWS: DRAFTS OF LEGISLATION
 
        _A Bill for Establishing Religious Freedom_

        SECTION I. Well aware that the opinions and belief of men
depend not on their own will, but follow involuntarily the evidence
proposed to their minds; that Almighty God hath created the mind
free, and manifested his supreme will that free it shall remain by
making it altogether insusceptible of restraint; that all attempts to
influence it by temporal punishments, or burthens, or by civil
incapacitations, tend only to beget habits of hypocrisy and meanness,
and are a departure from the plan of the holy author of our religion,
who being lord both of body and mind, yet chose not to propagate it
by coercions on either, as was in his Almighty power to do, but to
extend it by its influence on reason alone; that the impious
presumption of legislators and rulers, civil as well as
ecclesiastical, who, being themselves but fallible and uninspired
men, have assumed dominion over the faith of others, setting up their
own opinions and modes of thinking as the only true and infallible,
and as such endeavoring to impose them on others, hath established
and maintained false religions over the greatest part of the world
and through all time: That to compel a man to furnish contributions
of money for the propagation of opinions which he disbelieves and
abhors, is sinful and tyrannical; that even the forcing him to
support this or that teacher of his own religious persuasion, is
depriving him of the comfortable liberty of giving his contributions
to the particular pastor whose morals he would make his pattern, and
whose powers he feels most persuasive to righteousness; and is
withdrawing from the ministry those temporary rewards, which
proceeding from an approbation of their personal conduct, are an
additional incitement to earnest and unremitting labours for the
instruction of mankind; that our civil rights have no dependance on
our religious opinions, any more than our opinions in physics or
geometry; that therefore the proscribing any citizen as unworthy the
public confidence by laying upon him an incapacity of being called to
offices of trust and emolument, unless he profess or renounce this or
that religious opinion, is depriving him injuriously of those
privileges and advantages to which, in common with his fellow
citizens, he has a natural right; that it tends also to corrupt the
principles of that very religion it is meant to encourage, by
bribing, with a monopoly of worldly honours and emoluments, those who
will externally profess and conform to it; that though indeed these
are criminal who do not withstand such temptation, yet neither are
those innocent who lay the bait in their way; that the opinions of
men are not the object of civil government, nor under its
jurisdiction; that to suffer the civil magistrate to intrude his
powers into the field of opinion and to restrain the profession or
propagation of principles on supposition of their ill tendency is a
dangerous falacy, which at once destroys all religious liberty,
because he being of course judge of that tendency will make his
opinions the rule of judgment, and approve or condemn the sentiments
of others only as they shall square with or differ from his own; that
it is time enough for the rightful purposes of civil government for
its officers to interfere when principles break out into overt acts
against peace and good order; and finally, that truth is great and
will prevail if left to herself; that she is the proper and
sufficient antagonist to error, and has nothing to fear from the
conflict unless by human interposition disarmed of her natural
weapons, free argument and debate; errors ceasing to be dangerous
when it is permitted freely to contradict them.

        SECT. II. WE the General Assembly of Virginia do enact that no
man shall be compelled to frequent or support any religious worship,
place, or ministry whatsoever, nor shall be enforced, restrained,
molested, or burthened in his body or goods, nor shall otherwise
suffer, on account of his religious opinions or belief; but that all
men shall be free to profess, and by argument to maintain, their
opinions in matters of religion, and that the same shall in no wise
diminish, enlarge, or affect their civil capacities.

        SECT. III. AND though we well know that this Assembly, elected
by the people for the ordinary purposes of legislation only, have no
power to restrain the acts of succeeding Assemblies, constituted with
powers equal to our own, and that therefore to declare this act
irrevocable would be of no effect in law; yet we are free to declare,
and do declare, that the rights hereby asserted are of the natural
rights of mankind, and that if any act shall be hereafter passed to
repeal the present or to narrow its operation, such act will be an
infringement of natural right.

 
 
        _A Bill for Proportioning Crimes and Punishments_

        SECTION I. 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 labours 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 shewn, 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; and by producing in
many instances a total dispensation and impunity under the names of
pardon and privilege of clergy; 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; and the power of
dispensation, so dangerous and mischievous, which produces crimes by
holding up a hope of impunity, might totally be abolished, so that
men while contemplating to perpetrate a crime would see their
punishment ensuing as necessarily as effects follow their causes; for
rendering crimes and punishments, therefore, more proportionate to
each other,

        SECT. II. Be it enacted by the General Assembly, that no crime
shall be henceforth punished by the deprivation of life or limb, (*
1) except those herein after ordained to be so punished.

        SECT. III. (* 2) If a man do levy war (* 3) against the
Commonwealth _in the same_, or be adherent to the enemies of the
Commonwealth _within the same_, (* 4) giving to them aid or comfort
in the Commonwealth, or elsewhere, and thereof be convicted, of open
deed, by the evidence of two sufficient and lawful witnesses, or his
own voluntary confession, the said cases, and no (* 5) others, shall
be adjudged treasons which extend to the commonwealth, and the person
so convicted shall suffer death, by hanging, (* 6) and shall forfeit
his lands and goods to the commonwealth.

        SECT. IV. If any person commit petty treason, or a husband
murder his wife, a parent (* 7) his child, or a child his parent, he
shall suffer death, by hanging, and his body be delivered to
Anatomists to be dissected.

        SECT. V. Whosoever committeth murder by poisoning, shall suffer
death by poison.

        SECT. VI. Whosoever committeth murder by way of duel, shall
suffer death by hanging; and if he were the challenger, his body,
after death, shall be gibbetted (* 8).  He who removeth it from the
gibbet shall be guilty of a misdemeanor, and the officer shall see
that it be replaced.

        SECT. VII. Whosoever shall commit murder in any other way shall
suffer death by hanging.

        SECT. VIII. 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, (* 9) 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.

        SECT. IX. The same evidence (* 10) shall suffice, and order and
course (* 11) of trial be observed in cases of Petty treason as in
those of other (* 12) murders.

 
        SECT. X. Whosoever shall be guilty of manslaughter, (* 13)
shall, for the first offence, be condemned to hard (* 14) labour 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.

        SECT. XI. And where persons meaning to commit a trespass (* 15)
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.

        SECT. XII. In other cases of homicide the law will not add to
the miseries of the party, by punishments or forfeitures (* 16).

 
        SECT. XIII. Whenever sentence of death shall have been
pronounced against any person for treason or murder, execution
thereof shall be done on the next day but one, after such sentence,
unless it be Sunday, and then on the Monday following (* 17)

        SECT. XIV. Whosoever shall be guilty of rape, (* 18)
_polygamy_, (* 19) or sodomy (* 20) with man or woman, shall be
punished; if a man, by castration, (* 21) a woman, by boring through
the cartilage of her nose a hole of one half inch in diameter at the
least.

        SECT. XV. Whosoever on purpose, (* 22) shall disfigure another,
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 (* 23) 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.

 
        SECT. XVI. Whosoever shall counterfeit (* 24) 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 (* 25) each,
or any such coin, shall be condemned to hard labour six years in the
public works, and shall forfeit all his lands and goods to the
commonwealth.

        SECT. XVII. The making false any such paper bill, or note,
shall be deemed counterfeiting.

        SECT. XVIII. (* 26) Whosoever committeth arson, shall be
condemned to hard labour five years in the public works, and shall
make good the loss of the sufferers threefold (* 27).

        SECT. XIX. If any person shall, within this Commonwealth, or,
being a citizen thereof, shall without the same, wilfully destroy (*
28) or run (* 29) away with any sea-vessel, or goods laden on board
thereof, or plunder or pilfer any wreck, he shall be condemned to
hard labour five years in the public works, and shall make good the
loss of the sufferers threefold.

        SECT. XX. Whosoever committeth a robbery, (* 30) shall be
condemned to hard labour four years in the public works, and shall
make double reparation to the persons injured.

        SECT. XXI. Whatsoever act, if committed on any mansionhouse,
would be deemed a burglary, (* 31) shall be burglary, if committed on
any other house; and he who is guilty of burglary, shall be condemned
to hard labour four years in the public works, and shall make double
reparation to the persons injured.

        SECT. XXII. Whatsoever act, if committed in the night time,
shall constitute the crime of burglary, shall, if committed in the
day, be deemed house-breaking (* 32); and whoever is guilty thereof,
shall be condemned to hard labour three years in the public works,
and shall make reparation to the persons injured.

        SECT. XXIII. Whosoever shall be guilty of horse-stealing, (*
33) shall be condemned to hard labour three years in the public
works, and shall make reparation to the person injured.

        SECT. XXIV. Grand larceny (* 34) 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 labour (* 35) two years in the
public works, and shall make reparation to the person injured.

 
        SECT. XXV. Petty larceny shall be, where the goods stolen are
of less value than five dollars; whosoever shall be guilty thereof,
shall be forthwith put in the pillory for a quarter of an hour, shall
be condemned to hard labour for one year in the public works, and
shall make reparation to the persons injured.

        SECT. XXVI. Robbery (* 36) 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 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.

        SECT. XXVII. Buyers (* 37) 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.

        SECT. XXVIII. Prison-breakers, (* 38) also, shall be deemed
accessaries after the fact, to traitors or felons whom they enlarge
from prison (* 39).

 
        SECT. XXIX. 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 (* 40).

        SECT. XXX. If the principal offenders be fled, (* 41) or
secreted from justice, in any case not touching life or member, the
accessaries may, notwithstanding, be prosecuted as if their principal
were convicted (* 42).

 
        SECT. XXXI. If any offender stand mute of obstinacy, (* 43) or
challenge peremptorily 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 (* 44).

        SECT. XXXII. 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 default of testimony, or other cause, they
may direct a new trial to be had (* 45).

 
        SECT. XXXIII. No attainder shall work corruption of blood in
any case.

        SECT. XXXIV. 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.

        SECT. XXXV. The aid of Counsel, (* 46) and examination of their
witnesses on oath, shall be allowed to defendants in criminal
prosecutions.

        SECT. XXXVI. Slaves guilty of any offence (* 47) punishable in
others by labour 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.

        (* 1) 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 hwaether he lif age de nage; si quis in regis domo pugnet,
perdat omnem suam haereditatem, et in regis sit arbitrio, possideat
vitam an non possideat.  Ll. Inae. 6. Gif hwa on Cyninges healle
gefeohte, oththe his waepne gebrede, and hine mon gefo, sy thaet on
Cyninges dome swa death, swa lif, swa he him forgyfan wille: si quis
in aula regia pugnet, vel arma sua extrahat et capiatur, sit in regis
arbitrio tam mors quam vita, sicut ei condonare voluerit.  Ll. Alfr.
7, Gif hwa on Cyninges hirede gefeohte tholige thaet lifes, buton se
Cyning him gearian wille: si quis in regia dimicat, perdat vitam,
nisi rex hoc illi condonare velit.  Ll.  Cnuti. 56. 4. Bl. 125.

        (* 2) 25. E. 3. st. 5. c. 2. 7. W. 3. c. 3. 2.

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

        (* 4) 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.

        (* 5) The stat. 25. E. 3. directs all other cases of treasons
to await the opinion of Parliament. This has the effect of negative
words, excluding all other treasons. As we drop that part of the
statute, we must, by negative words, prevent an inundation of common
law treasons. I strike out the word "it," therefore, and insert "the
said cases, and no others." Quaere, how far those negative words may
effect 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 be
ousted by the negative words.

        (* 6) This implies "by the neck." See 2 Hawk. 544 notes n. o.

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

        (* 8) 25. G. 2. c. 37.

        (* 9) Quaere, if the estates of both parties in a duel, should
not be forfeited?  The deceased is equally guilty with a suicide.

        (* 10) Quaere, if these words may not be omitted?  By the
Common law, one witness in treason was sufficient. Foster 233. Plowd.
8. a. Mirror c. 3. 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. & 5. E. 6. c. 11. first required two witnesses in treason. The
clause against high treason supra, does the same as to high treason;
but it seems if 1st and 5th E. 6. are dropped, Petty treason will be
tried and proved, as at Common law, by one witness. But quaere, Lord
Coke being contra, whose opinion it is ever dangerous to neglect.

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

        (* 12) 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.

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

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

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

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

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

        (* 17) Beccaria. 19. 25. G. 2. c. 37.

        (* 18) 13. E. 1. c. 34. Forcible abduction of a woman having
substance is felony by 3. H. 7. c. 2.  3 Inst. 61. 4 Bl. 208. If
goods be taken, it will be felony as to them, without this statute;
and as to the abduction of the woman, quaere if not better to leave
that, and also kidnapping, 4. Bl. 219. to the Common law remedies,
viz., fine, imprisonment, and pillory, Raym. 474. 2 Show. 221. Skin.
47.  Comb. 10. the writs of Homine replegiando, Capias in Withernam,
Habeas corpus, and the action of trespass?  Rape was felony at the
Common law. 3. Inst. 60. but see 2. Inst. 181. further -- for its
definition see 2. Inst. 180. Bracton, L. 3. c. 28. 1. says the
punishment of rape is "amissio membrorum, ut sit membrum pro membro,
quia virgo, cum corrumpitur, membrum amittit, et ideo corruptor
puniatur in eo in quo deliquit; oculus igitur amittat propter
aspectum decoris quo virginem concupivit; amittat et testiculos qui
calorem stupri induxerunt. Olim quidem corruptores virginitatis et
castitatis suspendebantur et eorum fautores, &c.  Modernis tamen
temporibus aliter observatur," &c. And Fleta, "solet justiciarius pro
quolibet mahemio ad amissionem testiculorum vel oculorum convictum
condemnare, sed non sine errore, eo quod id judicium nisi in
corruptione virginum tantum competebat; nam pro virginitatis
corruptione solebant abscidi et merito judiciari, ut sic pro membro
quod abstulit, membrum per quod deliquit amitteret, viz., testiculos,
qui calorem stupri induxerunt," &c. Fleta, L. 1. c. 40.  4. "Gif
theow man theowne to nydhed genyde, gabte mid his eowende:" "Si
servus servam ad stuprum coegerit, compenset hoc virga sua virili. Si
quis puellam," &c. Ll. Aelfridi. 25. "Hi purgist femme per forze
forfait ad les membres." Ll. Gul. conq. 19.  In Dyer, 305, a man was
indicted, and found guilty of a rape on a girl of seven years old.
The court "doubted of the rape of so tender a girl; but if she had
been nine years old, it would have been otherwise." 14. Eliz.
Therefore the statute 18. Eliz. 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.

        (* 19) I. Jac. 1. c. 11. Polygamy was not penal till the
statute 1. Jac. The law contented itself with the nullity of the act.
4. Bl. 163. 3. Inst. 88.

        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.

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

        (* 21) Bracton, Fleta, &c.

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

        (* 23) 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 tollet al
pleintyfe. Et sy la pleynte soi faite de femme que avera tollet a
home ses membres, en tiel cas perdra la femme la une meyn par
jugement, come le membre dount ele axera trespasse." Britton, c. 25.
Fleta, B. 1. c. 40. Ll. AElfr. 19. 40.

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

        (* 25) 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 making, is "counterfeiting."

        (* 26) 43 L. c. 13. confined to four counties. 22. 23. Car. 2.
c. 7. 9. G. 1. c. 22. 9. G. 3. c. 29.

        (* 27) Arson was a felony at Common law -- 3. Inst. 66;
punished by a fine, Ll. Aethelst. 6. But Ll. Cnuti, 61. make it a
"scelus inexpiable." "Hus brec and baernet and open thyfth
aeberemorth and hlaford swice aefter woruld laga is botleds." Word
for word, "house break and burnt, and open theft, and manifest
murther, and lord-treachery, afterworld's law is bootless." Bracton
says it was punished by death. "Si quis turbida seditione incendium
fecerit nequiter et in felonia, vel ob inimicitias, vel praedandi
causa, capitali puniatur poena vel sententia." Bract. L. 3. 27. He
defines it as commissible by burning "aedes alienas." Ib. Britton, c.
9. "Ausi soit enquis de ceux que felonisement en temps de pees eient
autre _blees_ ou autre _mesons_ ars, et ceux que serrount de ceo
atteyntz, soient ars issint que eux soient punys par mesme cele chose
dount ilz pecherent." Fleta, L. 1. c. 37. is a copy of Bracton. The
Mirror c. 1. 8. says, "Ardours sont que ardent citie, ville, maison
home, maison beast, ou auters chatelx, de lour felonie en temps de
pace pour haine ou vengeance." Again, c. 2.  11.  pointing out the
words of the appellor "jeo dise que Sebright, &c., entiel meason ou
_biens_ mist de feu." Coke 3.  Inst. 67. says, "the ancient authors
extended this felony further than houses, viz., to sacks of corn,
waynes or carts of coal, wood or other goods." He denies it as
commissible, not only on the inset houses, parcel of the mansion
house, but the outset also, as barn, stable, cowhouse, 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. 23.  Car.
2. and 9. G. 1. are the principal statutes against arson. They extend
the offence beyond the Common law.

        (* 28) 1. Ann. st. 2. c. 9. 12. Ann. c. 18. 4. G. 1. c. 12. 26.
G. 2. c. 19.

        (* 28) 11. 12. W. 3. c. 7.

        (* 30) Robbery was a felony at Common law. 3 Inst. 68. "Scelus
inexpiable," by the Ll. Cnuti. 61. [See before in Arson.] It was
punished with death. Britt. c. 15, "de robbours et de larouns et de
semblables mesfesours, soit ausi ententivement enquis -- et tauntost
soient ceux robbours juges a la mort." Fleta says, "si quis convictus
fuerit de bonis viri robbatis vel asportatis ad sectam regis judicium
capitale subibit. L. 1. c. 39. See also Bract. L. 3. c. 32. 1.

        (* 31) 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 fecerit ut perdat omne
quod habet, et sit in regis arbitrio utrum vitam habeat. Eac we
quaedon be mundbryce and be ham socnum, sethe hit ofer this do thaet
he dolie ealles thaes the age, and sy on Cyninges dome hwaether he
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 king's
doom whether he life owes [owns.] Ll. Eadmundi, c. 6. and see Ll.
Cnuti. 61. "hus brec," in notes on 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
debrusont esglises ou auter mesons, ou murs ou portes de nos cytes,
ou de nos Burghes." Britt. c. 10. "Burglaria est nocturna diruptio
habitaculi alicu jus, vel ecclesiae, etiam murorum, partarumve
civitatis aut burgi, ad feloniam aliquam perpetrandam. _Noctanter_
dico, recentiores secutus; 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 Homestall. 4 Bl.
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 them,
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 1. H. P. C. 554. had denied it.
Our bill must distinguish them by different degrees of punishment.

        (* 32) At the Common law, the offence of Housebreaking 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 Housebreaking, as
nearly to bring the offences together again. These are 23 H. 8. c. 1.
1 E. 6. c. 12. 5 and 6 E. 6. c. 9. 3 and 4 W. M. c. 9. 39 El. c. 15.
10 and 11 W. 3 c. 23. 12 Ann. c. 7. See Barr. 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
Housebreaking 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.

        (* 33) 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.

        (* 34) The distinction between grand and petty larceny, is very
ancient. At first 8d. was the sum which constituted grand larceny.
Ll. AEthelst. c. 1. "Ne parcatur ulli furi, qui furtum manutenens
captus sit, supra 12. annos nato, et supra 8. denarios." Afterwards,
in the same king's reign it was raised to 12d. "non parcatur alicui
furi ultra 12 denarios, et ultra 12 annos nato --- ut occidemus illum
et capiamus omne quod possidet, et imprimis sumamus rei furto ablatae
pretium ab haerede, ac dividatur postea reliquum in duas partes, una
pars uxori, si munda, et facinoris conscia non sit; et residuum in
duo, dimidium capiat rex, dimidium societas." Ll. Aethelst. Wilkins,
p. 65.

        (* 35) Ll. Inae. c. 7. "Si quis furetur ita ut uxor ejus et
infans ipsius nesciant, solvat 60. solidos poenae loco. Si autem
furetur testantibus omnibus haeredibus suis, _abeant omnes in
servitutem_." Ina was king of the West-Saxons, and began to reign A.
C. 688. After the union of the Heptarchy, i. e. temp. AEthelst, inter
924 and 940, we find it punishable with death as above. So it was
inter 1017 and 1035, i. e. temp. Cnuti. Ll. Cnuti. 61. cited in notes
on Arson. In the time of William the conqueror, it seems to have been
made punishable by fine only. Ll. Gul. conq. apud Wilk. p. 218, 220.
This commutation, however, was taken away by Ll. H. 1. anno 1108. "Si
quis in furto vel latrocinio deprehensus fuisset, suspenderetur;
sublata wirgildorum, id est, pecuniarae redemptionis lege." Larceny
is the felonious taking and carrying away of the personal goods of
another. 1. As to the taking, the 3. 4. W. 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, H. 8. c. 7. indeed, have added to the Common law, by making it
larceny in a servant to convert things of his master's. But quaere,
if they should be imitated more than as to other breaches of trust in
general. 2. As to the subject of larceny, 4 G. 2. c. 32. 6 G. 3. c.
36. 48. 45. 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 reality. But the
enumeration is unsystematical, and in this country, where the produce
of the earth is so spontaneous, as to have rendered things of this
kind scarcely a breach of civility or good manners, in the eyes of
the people, quaere, if it would not too much enlarge the field of
Criminal law?  The same may be questioned of 9 G. 1. c. 22. 13 Car.
2. c. 10. 10 G. 2. c. 32. 5 G. 3. c. 14. 22 and 23 Car. 2. c. 25. 37
E. 3. c. 19. making it felony to steal animals ferae naturae.

        (* 36) 2 G. 2. c. 25 3. 7 G. 3. c. 50.

        (* 37) 3. 4. W. M. c. 9.  4. 5 Ann. c. 31.  5.  4 G. 1. c. 11.
1.

        (* 38) 1 E. 2.

        (* 39) 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, amplius (quam causa pro
qua recepti sunt exposeit) 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 Coke, and all the justices,
it was a felony in strangers only, but not in the prisoner himself.
S. C. Fitz. Abr. Coron. 48. They are the 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
mortell, car cel usage nest garrant per nul ley, ne in nul part est
use forsque in cest realme, et en France, eins [mais] est leu
garrantie de ceo faire per la ley de nature." 2 Inst.  589. The stat.
1. E. 2. de fraugentibus prisonam, 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 says 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.

        (* 40) Gif wiccan owwe wigleras nansworan, owwe morthwyrhtan
owwe fule afylede aebere horcwenan ahwhar on lande wurthan agytene,
thonne fyrsie man of earde and claensie tha theode, owwe on earde
forfare hi mid ealle, buton hi geswican and the deoper gebetan: if
witches, or weirds, man-swearers, murther-wroughters, or foul,
defiled, open whore-queens, anywhere in the land were gotten, then
force them off earth, and cleanse the nation, or in earth forth-fare
them withal, but on they beseech, and deeply better. Ll. Ed. et
Guthr. c. ii. "Sagae, mulieres barbara, factitantes sacrificia, aut
pestiferi, si cui mortem intulerint, neque id inficiari poterint,
capitis poena esto." Ll. AEthelst. c. 6. apud Lambard. Ll. Aelfr. 30.
Ll. Cnuti. c. 4. "Mesme cel jugement (d'etrears) eyent sorcers, et
sorceresses, &c. ut supra. Fleta ut 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 I Jac. I. 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.

        (* 41) I Ann. c. 9. 2.

        (* 42) As every treason includes within it a misprision of
treason, so every felony includes a misprision, or misdemeanor. I
Hale P. C. 652. 708. "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.

        (* 43) E. I. c. 12.

        (* 44) 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.
Quaere, whether it would not be better to consider the supernumerary
challenge as merely void, and to proceed in the trial?  Quaere too,
in case of silence?

        (* 45) "Cum Clericus sic de crimine convictus degradetur non
sequitur alia poena pro uno delicto, vel pluribus ante degradationem
perpetratis. Satis enim sufficit ei pro poena degradatio, quae 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 bonae memoriae S.
Cantuanen. Archiepiscopo de quodam diacono, qui se apostatavit pro
quadam Judaae; qui cum esset per episcopum degradatus, statim fuit
igni traditus per manum laicalem." Bract. L. 3. c. 9. 2. "Et mesme
cel jugement (i. e. qui ils soient ars eyent) sorcers et sorceresses,
et sodomites et mescreauntz apertement atteyntz." Britt. c. 9.
"Christiani autem Apostatae, sortilegii, et hujusmodi detractari
debent et comburi." Fleta, L. I. c. 37. 2 see 3.  Inst. 39. 12. Rep.
92. I H. P. C. 393. The extent of the clerical privilege at the
Common law. I. 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 I. 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 varium, 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 quoties. 2 H. P. C. 374.
To nuns also.  Fitz. Abr. Corone. 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. Corone. 233. By the 9 E. 4. 28. b.
34. H. 6. 49 a. b.  a 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.  II. 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. II. Rep. 29. b. The orders entitling the party, were bishops,
priests, deacons and subdeacons, the inferior being reckoned Clerici
in minoribus. 2. H.  P. C. 373. Quaere, however, if this distinction
is not founded on the stat. 23 H. 8. c.  I. 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.

        (* 46) I Ann. c. 9.

        (* 47) Manslaughter, counterfeiting, arson, asportation of
vessels, robbery, burglary, house-breaking, horse-stealing, larceny.

 
 
        _A Bill for the More General Diffusion of Knowledge_
 
        SECTION I. Whereas it appeareth that however certain forms of
government are better calculated than others to protect individuals
in the free exercise of their natural rights, and are at the same
time themselves better guarded against degeneracy, yet experience
hath shewn, that even under the best forms, those entrusted with
power have, in time, and by slow operations, perverted it into
tyranny; and it is believed that the most effectual means of
preventing this would be, to illuminate, as far as practicable, the
minds of the people at large, and more especially to give them
knowledge of those facts, which history exhibiteth, that, possessed
thereby of the experience of other ages and countries, they may be
enabled to know ambition under all its shapes, and prompt to exert
their natural powers to defeat its purposes; And whereas it is
generally true that the people will be happiest whose laws are best,
and are best administered, and that laws will be wisely formed, and
honestly administered, in proportion as those who form and administer
them are wise and honest; whence it becomes expedient for promoting
the publick happiness that those persons, whom nature hath endowed
with genius and virtue, should be rendered by liberal education
worthy to receive, and able to guard the sacred deposit of the rights
and liberties of their fellow citizens, and that they should be
called to that charge without regard to wealth, birth or other
accidental condition or circumstance; but the indigence of the
greater number disabling them from so educating, at their own
expence, those of their children whom nature hath fitly formed and
disposed to become useful instruments for the public, it is better
that such should be sought for and educated at the common expence of
all, than that the happiness of all should be confided to the weak or
wicked:

        SECT. II. BE it therefore enacted by the General Assembly, that
in every county within this commonwealth, there shall be chosen
annually, by the electors qualified to vote for Delegates, three of
the most honest and able men of their county, to be called the
Aldermen of the county; and that the election of the said Aldermen
shall be held at the same time and place, before the same persons,
and notified and conducted in the same manner as by law is directed
for the annual election of Delegates for the county.

        SECT. III. THE person before whom such election is holden shall
certify to the court of the said county the names of the Aldermen
chosen, in order that the same may be entered of record, and shall
give notice of their election to the said Aldermen within a fortnight
after such election.

        SECT. IV. THE said Aldermen on the first Monday in October, if
it be fair, and if not, then on the next fair day, excluding Sunday,
shall meet at the court-house of their county, and proceed to divide
their said county into hundreds, bounding the same by water courses,
mountains, or limits, to be run and marked, if they think necessary,
by the county surveyor, and at the county expence, regulating the
size of the said hundreds, according to the best of their discretion,
so as that they may contain a convenient number of children to make
up a school, and be of such convenient size that all the children
within each hundred may daily attend the school to be established
therein, distinguishing each hundred by a particular name; which
division, with the names of the several hundreds, shall be returned
to the court of the county and be entered of record, and shall remain
unaltered until the increase or decrease of inhabitants shall render
an alteration necessary, in the opinion of any succeeding Aldermen,
and also in the opinion of the court of the county.

        SECT. V. THE electors aforesaid residing within every hundred
shall meet on the third Monday in October after the first election of
Aldermen, at such place, within their hundred, as the said Aldermen
shall direct, notice thereof being previously given to them by such
person residing within the hundred as the said Aldermen shall require
who is hereby enjoined to obey such requisition, on pain of being
punished by amercement and imprisonment.  The electors being so
assembled shall choose the most convenient place within their hundred
for building a school-house.  If two or more places, having a greater
number of votes than any others, shall yet be equal between
themselves, the Aldermen, or such of them as are not of the same
hundred, on information thereof, shall decide between them.  The said
Aldermen shall forthwith proceed to have a school-house built at the
said place, and shall see that the same be kept in repair, and, when
necessary, that it be rebuilt; but whenever they shall think
necessary that it be rebuilt, they shall give notice as before
directed, to the electors of the hundred to meet at the said
school-house, on such day as they shall appoint, to determine by
vote, in the manner before directed, whether it shall be rebuilt at
the same, or what other place in the hundred.

        SECT. VI. AT every of these schools shall be taught reading,
writing, and common arithmetick, and the books which shall be used
therein for instructing the children to read shall be such as will at
the same time make them acquainted with Graecian, Roman, English, and
American history.  At these schools all the free children, male and
female, resident within the respective hundred, shall be intitled to
receive tuition gratis, for the term of three years, and as much
longer, at their private expence, as their parents, guardians or
friends, shall think proper.

        SECT. VII. OVER ten of these schools (or such other number
nearest thereto, as the number of hundreds in the county will admit,
without fractional divisions) an overseer shall be appointed annually
by the Aldermen at their first meeting, eminent for his learning,
integrity, and fidelity to the commonwealth, whose business and duty
it shall be, from time to time, to appoint a teacher to each school,
who shall give assurance of fidelity to the commonwealth, and to
remove him as he shall see cause; to visit every school once in every
half year at the least, to examine the schollars; see that any
general plan of reading and instruction recommended by the visiters
of William and Mary College shall be observed; and to superintend the
conduct of the teacher in every thing relative to his school.

        SECT. VIII. EVERY teacher shall receive a salary of by the
year, which, with the expences of building and repairing the school
houses, shall be provided in such manner as other county expences are
by law directed to be provided and shall also have his diet, lodging,
and washing found him, to be levied in like manner, save only that
such levy shall be on the inhabitants of each hundred for the board
of their own teacher only.

        SECT. IX. AND in order that grammer schools may be rendered
convenient to the youth in every part of the commonwealth, BE it
farther enacted, that on the first Monday in November, after the
first appointment of overseers for the hundred schools, if fair, and
if not, then on the next fair day, excluding Sunday, after the hour
of one in the afternoon, the said overseers appointed for the schools
in the counties of Princess Ann, Norfolk, Nansemond and
Isle-of-Wight, shall meet at Nansemond court house; those for the
counties of Southampton, Sussex, Surry and Prince George, shall meet
at Sussex court-house; those for the counties of Brunswick,
Mecklenburg and Lunenburg, shall meet at Lunenburg court-house; those
for the counties of Dinwiddie, Amelia and Chesterfield, shall meet at
Chesterfield court-house; those for the counties of Powhatan,
Cumberland, Goochland, Henrico and Hanover, shall meet at Henrico
court-house; those for the counties of Prince Edward, Charlotte and
Halifax, shall meet at Charlotte court-house; those for the counties
of Henry, Pittsylvania and Bedford, shall meet at Pittsylvania
court-house; those for the counties of Buckingham, Amherst, Albemarle
and Fluvanna, shall meet at Albemarle court-house; those for the
counties of Botetourt, Rockbridge, Montgomery, Washington and
Kentucky, shall meet at Botetourt court-house; those for the counties
of Augusta, Rockingham and Greenbrier, shall meet at Augusta
court-house; those for the counties of Accomack and Northampton,
shall meet at Accomack court-house; those for the counties of
Elizabeth City, Warwick, York, Gloucester, James City, Charles City
and New Kent, shall meet at James City court-house; those for the
counties of Middlesex, Essex, King and Queen, King William and
Caroline, shall meet at King and Queen court-house; those for the
counties of Lancaster, Northumberland, Richmond and Westmoreland,
shall meet at Richmond court-house; those for the counties of King
George, Stafford, Spotsylvania, Prince William and Fairfax, shall
meet at Spotsylvania court-house; those for the counties of Loudoun
and Fauquier, shall meet at Loudoun court-house; those for the
counties of Culpeper, Orange and Louisa, shall meet at Orange
court-house; those for the counties of Shenandoah and Frederick,
shall meet at Frederick court-house; those for the counties of
Hampshire and Berkeley, shall meet at Berkeley court house; and those
for the counties of Yohogania, Monongalia and Ohio, shall meet at
Monongalia court-house; and shall fix on such place in some one of
the counties in their district as shall be most proper for situating
a grammar school-house, endeavouring that the situation be as central
as may be to the inhabitants of the said counties, that it be
furnished with good water, convenient to plentiful supplies of
provision and fuel, and more than all things that it be healthy.  And
if a majority of the overseers present should not concur in their
choice of any one place proposed, the method of determining shall be
as follows: If two places only were proposed, and the votes be
divided, they shall decide between them by fair and equal lot; if
more than two places were proposed, the question shall be put on
those two which on the first division had the greater number of
votes; or if no two places had a greater number of votes than the
others, as where the votes shall have been equal between one or both
of them and some other or others, then it shall be decided by fair
and equal lot (unless it can be agreed by a majority of votes) which
of the places having equal numbers shall be thrown out of the
competition, so that the question shall be put on the remaining two,
and if on this ultimate question the votes shall be equally divided,
it shall then be decided finally by lot.

        SECT. X. THE said overseers having determined the place at
which the grammer school for their district shall be built, shall
forthwith (unless they can otherwise agree with the proprietors of
the circumjacent lands as to location and price) make application to
the clerk of the county in which the said house is to be situated,
who shall thereupon issue a writ, in the nature of a writ of ad quod
damnum, directed to the sheriff of the said county commanding him to
summon and impannel twelve fit persons to meet at the place, so
destined for the grammer school-house, on a certain day, to be named
in the said writ, not less than five, nor more than ten, days from
the date thereof; and also to give notice of the same to the
proprietors and tenants of the lands to be viewed, if they be to be
found within the county, and if not, then to their agents therein if
any they have.  Which freeholders shall be charged by the said
sheriff impartially, and to the best of their skill and judgement to
view the lands round about the said place, and to locate and
circumscribe, by certain metes and bounds, one hundred acres thereof,
having regard therein principally to the benefit and convenience of
the said school, but respecting in some measure also the convenience
of the said proprietors, and to value and appraise the same in so
many several respective interests and estates therein.  And after
such location and appraisement so made, the said sheriff shall
forthwith return the same under the hands and seals of the said
jurors, together with the writ, to the clerk's office of the said
county and the right and property of the said proprietors and tenants
in the said lands so circumscribed shall be immediately devested and
be transferred to the commonwealth for the use of the said grammar
school, in full and absolute dominion, any want of consent or
disability to consent in the said owners or tenants notwithstanding.
But it shall not be lawful for the said overseers so to situate the
said grammar school-house, nor to the said jurors so to locate the
said lands, as to include the mansion-house of the proprietor of the
lands, nor the offices, curtilage, or garden, thereunto immediately
belonging.

        SECT. XI. THE said overseers shall forthwith proceed to have a
house of brick or stone, for the said grammar school, with necessary
offices, built on the said lands, which grammer school-house shall
contain a room for the school, a hall to dine in, four rooms for a
master and usher, and ten or twelve lodging rooms for the scholars.

        SECT. XII. TO each of the said grammar schools shall be allowed
out of the public treasury, the sum of pounds, out of which shall be
paid by the Treasurer, on warrant from the Auditors, to the
proprietors or tenants of the lands located, the value of their
several interests as fixed by the jury, and the balance thereof shall
be delivered to the said overseers to defray the expence of the said
buildings.

        SECT. XIII. IN these grammar schools shall be taught the Latin
and Greek languages, English grammar, geography, and the higher part
of numerical arithmetick, to wit, vulgar and decimal fractions, and
the extraction of the square and cube roots.

        SECT. XIV. A visiter from each county constituting the district
shall be appointed, by the overseers, for the county, in the month of
October annually, either from their own body or from their county at
large, which visiters or the greater part of them, meeting together
at the said grammar school on the first Monday in November, if fair,
and if not, then on the next fair day, excluding Sunday, shall have
power to choose their own Rector, who shall call and preside at
future meetings, to employ from time to time a master, and if
necessary, an usher, for the said school, to remove them at their
will, and to settle the price of tuition to be paid by the scholars.
They shall also visit the school twice in every year at the least,
either together or separately at their discretion, examine the
scholars, and see that any general plan of instruction recommended by
the visiters of William and Mary College shall be observed.  The said
masters and ushers, before they enter on the execution of their
office, shall give assurance of fidelity to the commonwealth.

        SECT. XV. A steward shall be employed, and removed at will by
the master, on such wages as the visiters shall direct; which steward
shall see to the procuring provisions, fuel, servants for cooking,
waiting, house cleaning, washing, mending, and gardening on the most
reasonable terms; the expence of which, together with the steward's
wages, shall be divided equally among all the scholars boarding
either on the public or private expence.  And the part of those who
are on private expence, and also the price of their tuitions due to
the master or usher, shall be paid quarterly by the respective
scholars, their parents, or guardians, and shall be recoverable, if
withheld, together with costs, on motion in any Court of Record, ten
days notice thereof being previously given to the party, and a jury
impannelled to try the issue joined, or enquire of the damages.  The
said steward shall also, under the direction of the visiters, see
that the houses be kept in repair, and necessary enclosures be made
and repaired, the accounts for which, shall, from time to time, be
submitted to the Auditors, and on their warrant paid by the
Treasurer.

        SECT. XVI. EVERY overseer of the hundred schools shall, in the
month of September annually, after the most diligent and impartial
examination and enquiry, appoint from among the boys who shall have
been two years at the least at some one of the schools under his
superintendance, and whose parents are too poor to give them farther
education, some one of the best and most promising genius and
disposition, to proceed to the grammar school of his district; which
appointment shall be made in the court-house of the county, on the
court day for that month, if fair, and if not, then on the next fair
day, excluding Sunday, in the presence of the Aldermen, or two of
them at the least, assembled on the bench for that purpose, the said
overseer being previously sworn by them to make such appointment,
without favor or affection, according to the best of his skill and
judgment, and being interrogated by the said Aldermen, either on
their own motion, or on suggestions from the parents, guardians,
friends, or teachers of the children, competitors for such
appointment; which teachers shall attend for the information of the
Aldermen.  On which interrogatories the said Aldermen, if they be not
satisfied with the appointment proposed, shall have right to negative
it; whereupon the said visiter may proceed to make a new appointment,
and the said Aldermen again to interrogate and negative, and so
toties quoties until an appointment be approved.

        SECT. XVII. EVERY boy so appointed shall be authorised to
proceed to the grammar school of his district, there to be educated
and boarded during such time as is hereafter limited; and his quota
of the expences of the house together with a compensation to the
master or usher for his tuition, at the rate of twenty dollars by the
year, shall be paid by the Treasurer quarterly on warrant from the
Auditors.

        SECT. XVIII. A visitation shall be held, for the purpose of
probation, annually at the said grammar school on the last Monday in
September, if fair, and if not, then on the next fair day, excluding
Sunday, at which one third of the boys sent thither by appointment of
the said overseers, and who shall have been there one year only,
shall be discontinued as public foundationers, being those who, on
the most diligent examination and enquiry, shall be thought to be of
the least promising genius and disposition; and of those who shall
have been there two years, all shall be discontinued, save one only
the best in genius and disposition, who shall be at liberty to
continue there four years longer on the public foundation, and shall
thence forward be deemed a senior.

        SECT. XIX. THE visiters for the districts which, or any part of
which, be southward and westward of James river, as known by that
name, or by the names of Fluvanna and Jackson's river, in every other
year, to wit, at the probation meetings held in the years,
distinguished in the Christian computation by odd numbers, and the
visiters for all the other districts at their said meetings to be
held in those years, distinguished by even numbers, after diligent
examination and enquiry as before directed, shall chuse one among the
said seniors, of the best learning and most hopeful genius and
disposition, who shall be authorised by them to proceed to William
and Mary College, there to be educated, boarded, and clothed, three
years; the expence of which annually shall be paid by the Treasurer
on warrant from the Auditors.

 
 
        _A Bill Declaring Who Shall Be Deemed Citizens of this
Commonwealth_

        SECTION I. Be it enacted by the General Assembly, that all
white persons born within the territory of this commonwealth and all
who have resided therein two years next before the passing of this
act, and all who shall hereafter migrate into the same; and shall
before any court of record give satisfactory proof by their own oath
or affirmation, that they intend to reside therein, and moreover
shall give assurance of fidelity to the commonwealth; and all infants
wheresoever born, whose father, if living, or otherwise, whose mother
was, a citizen at the time of their birth, or who migrate hither,
their father, if living, or otherwise their mother becoming a
citizen, or who migrate hither without father or mother, shall be
deemed citizens of this commonwealth, until they relinquish that
character in manner as herein after expressed: And all others not
being citizens of any the United States of America, shall be deemed
aliens.  The clerk of the court shall enter such oath of record, and
give the person taking the same a certificate thereof, for which he
shall receive the fee of one dollar.  And in order to preserve to the
citizens of this commonwealth, that natural right, which all men have
of relinquishing the country, in which birth, or other accident may
have thrown them, and, seeking subsistance and happiness wheresoever
they may be able, or may hope to find them: And to declare
unequivocably what circumstances shall be deemed evidence of an
intention in any citizen to exercise that right, it is enacted and
declared, that whensoever any citizen of this commonwealth, shall by
word of mouth in the presence of the court of the county, wherein he
resides, or of the General Court, or by deed in writing, under his
hand and seal, executed in the presence of three witnesses, and by
them proved in either of the said courts, openly declare to the same
court, that he relinquishes the character of a citizen, and shall
depart the commonwealth; or whensoever he shall without such
declaration depart the commonwealth and enter into the service of any
other state, not in enmity with this, or any other of the United
States of America, or do any act whereby he shall become a subject or
citizen of such state, such person shall be considered as having
exercised his natural right of expatriating himself, and shall be
deemed no citizen of this commonwealth from the time of his
departure.  The free white inhabitants of every of the states,
parties to the American confederation, paupers, vagabonds and
fugitives from justice excepted, shall be intitled to all rights,
privileges, and immunities of free citizens in this commonwealth, and
shall have free egress, and regress, to and from the same, and shall
enjoy therein, all the privileges of trade, and commerce, subject to
the same duties, impositions and restrictions as the citizens of this
commonwealth.  And if any person guilty of, or charged with treason,
felony, or other high misdemeanor, in any of the said states, shall
flee from justice and be found in this commonwealth, he shall, upon
demand of the Governor, or Executive power of the state, from which
he fled, be delivered up to be removed to the state having
jurisdiction of his offence.  Where any person holding property,
within this commonwealth, shall be attainted within any of the said
states, parties to the said confederation, of any of those crimes,
which by the laws of this commonwealth shall be punishable by
forfeiture of such property, the said property shall be disposed of
in the same manner as it would have been if the owner thereof had
been attainted of the like crime in this commonwealth.

 
        _Report on Government for Western Territory_
 
        March 1, 1784

        The committee appointed to prepare a plan for the temporary
Government of the Western territory have agreed to the following
resolutions:

        Resolved that the territory ceded or to be ceded by Individual
States to the United States whensoever the same shall have been
purchased of the Indian Inhabitants & offered for sale by the U. S.
shall be formed into distinct States bounded in the following manner
as nearly as such cessions will admit, that is to say; Northwardly &
Southwardly by parallels of latitude so that each state shall
comprehend from South to North two degrees of latitude beginning to
count from the completion of thirty-one degrees North of the equator,
but any territory Northwardly of the 47'th. degree shall make part of
the state -- below, and Eastwardly & Westwardly they shall be
bounded, those on the Mississippi by that river on one side and the
meridian of the lowest point of the rapids of Ohio on the other; and
those adjoining on the East by the same meridian on their Western
side, and on their eastern by the meridian of the Western cape of the
mouth of the Great Kanhaway.  And the territory eastward of this last
meridian between the Ohio, Lake Erie & Pennsylvania shall be one
state.

        That the settlers within the territory so to be purchased &
offered for sale shall, either on their own petition, or on the order
of Congress, receive authority from them, with appointments of time
and place for their free males of full age to meet together for the
purpose of establishing a temporary government, to adopt the
constitution & laws of any one of these states, so that such laws
nevertheless shall be subject to alteration by their ordinary
legislature, and to erect, subject to a like alteration counties or
townships for the election of members for their legislature.

        That such temporary government shall only continue in force in
any state until it shall have acquired 20,000 free inhabitants, when,
giving due proof thereof to Congress, they shall receive from them
authority with appointments of time and place to call a Convention of
representatives to establish a permanent Constitution & Government
for themselves.

        Provided that both the temporary & permanent Governments be
established on these principles as their basis.  1, That they shall
forever remain a part of the United States of America.  2, That in
their persons, property & territory, they shall be subject to the
Government of the United States in Congress assembled and to the
articles of confederation in all those cases in which the original
states shall be so subject.  3, That they shall be subject to pay a
part of the federal debts contracted or to be contracted to be
apportioned on them by Congress, according to the same common rule
and measure by which apportionments thereof shall be made on the
other states.  4, That their respective Governments shall be in
republican forms, and shall admit no person to be a citizen, who
holds any hereditary title.  5, That after the year 1800 of the
Christian aera, there shall be neither slavery nor involuntary
servitude in any of the said states, otherwise than in punishment of
crimes, whereof the party shall have been duly convicted to have been
personally guilty.

        That whenever any of the sd states shall have, of free
inhabitants as many as shall then be in any one the least numerous of
the thirteen original states, such state shall be admitted by it's
delegates into the Congress of the United States, on an equal footing
with the said original states: After which the assent of two thirds
of the United States in Congress assembled shall be requisite in all
those cases, wherein by the Confederation the assent of nine States
is now required.  Provided the consent of nine states to such
admission may be obtained according to the eleventh of the Articles
of Confederation.  Until such admission by their delegates into
Congress, any of the said states, after the establishment of their
temporary Government, shall have authority to keep a sitting Member
in Congress, with a right of debating, but not of voting.

        That the territory Northward of the 45'th. degree, that is to
say of the completion of 45 degrees from the Equator & extending to
the Lake of the Woods, shall be called SYLVANIA:

        That of the territory under the 45'th.& 44'th. degrees that
which lies Westward of Lake Michigan shall be called MICHIGANIA, and
that which is Eastward thereof within the peninsula formed by the
lakes & waters of Michigan, Huron, St. Clair and Erie, shall be
called CHERRONESUS, and shall include any part of the peninsula which
may extend above the 45th degree.

        Of the territory under the 43'd & 42'd degrees, that to the
Westward thro' which the Assenisipi or Rock river runs shall be
called ASSENISIPIA, and that to the Eastward in which are the
fountains of the Muskingum, the two Miamis of Ohio, the Wabash, the
Illinois, the Miami of the lake and Sandusky rivers, shall be called
METROPOTAMIA.

        Of the territory which lies under the 41'st. & 40'th. degrees
the Western, thro which the river Illinois runs, shall be called
ILLINOIA; that next adjoining to the Eastward SARATOGA, and that
between this last & Pennsylvania & extending from the Ohio to Lake
Erie shall be called WASHINGTON.

        Of the territory which lies under the 39'th.& 38'th. degrees to
which shall be added so much of the point of land within the fork of
the Ohio & Missisipi as lies under the 37th. degree, that to the
Westward within & adjacent to which are the confluences of the rivers
Wabash, Shawanee, Tanisse, Ohio, Illinois, Missisipi & Missouri,
shall be called POLYPOTAMIA, and that to the Eastward farther up the
Ohio otherwise called the PELISIPI shall be called PELISIPIA.

        That the preceding articles shall be formed into a charter of
Compact, shall be duly executed by the President of the U. S. in
Congress assembled under his hand and the seal of the United States,
shall be promulgated, and shall stand as fundamental constitutions
between the thirteen original States, & those now newly described
unalterable but by the joint consent of the U. S. in Congress
assembled and of the particular state within which such alteration is
proposed to be made.

 
        _Observations on the Whale-Fishery_

        Whale oil enters, as a raw material, into several branches of
manufacture, as of wool, leather, soap: it is used also in painting,
architecture and navigation.  But its great consumption is in
lighting houses and cities.  For this last purpose however it has a
powerful competitor in the vegetable oils.  These do well in warm,
still weather, but they fix with cold, they extinguish easily with
the wind, their crop is precarious, depending on the seasons, and to
yield the same light, a larger wick must be used, and greater
quantity of oil consumed.  Estimating all these articles of
difference together, those employed in lighting cities find their
account in giving about 25 per cent.  more for whale than for
vegetable oils.  But higher than this the whale oil, in its present
form, cannot rise; because it then becomes more advantageous to the
city-lighters to use others.  This competition then limits its price,
higher than which no encouragement can raise it, and becomes, as it
were, a law of its nature, but, at this low price, the whale fishery
is the poorest business into which a merchant or sailor can enter.
If the sailor, instead of wages, has a part of what is taken, he
finds that this, one year with another, yields him less than he could
have got as wages in any other business.  It is attended too with
great risk, singular hardships, and long absences from his family.
If the voyage is made solely at the expence of the merchant, he finds
that, one year with another, it does not reimburse him his expences.
As, for example, an English ship of 300 ton, and 42. hands brings
home, communibus annis, after a four months voyage, 25. ton of oil,
worth 437l. 10s. sterl. but the wages of the officers and seamen will
be 400l.  The Outfit then and the merchant's profit must be paid by
the government.  And it is accordingly on this idea that the British
bounty is calculated.  From the poverty of this business then it has
happened that the nations, who have taken it up, have successively
abandoned it.  The Basques began it.  But, tho' the most economical
and enterprising of the inhabitants of France, they could not
continue it; and it is said they never employed more than 30. ships a
year.  The Dutch and Hanse towns succeeded them.  The latter gave it
up long ago tho' they have continued to lend their name to British
and Dutch oils.  The English carried it on, in competition with the
Dutch, during the last, and beginning of the present century.  But it
was too little profitable for them in comparison with other branches
of commerce open to them.  In the mean time too the inhabitants of
the barren Island of Nantucket had taken up this fishery, invited to
it by the whales presenting themselves on their own shore.  To them
therefore the English relinquished it, continuing to them, as British
subjects, the importation of their oils into England duty free, while
foreigners were subject to a duty of 18l.  5s. sterl. a ton.  The
Dutch were enabled to continue it long, because, 1. They are so near
the northern fishing grounds, that a vessel begins her fishing very
soon after she is out of port.  2.  They navigate with more economy
than the other nations of Europe.  3.  Their seamen are content with
lower wages: and 4. their merchants with a lower profit on their
capital.  Under all these favorable circumstances however, this
branch of business, after long languishing, is at length nearly
extinct with them.  It is said they did not send above half a dozen
ships in pursuit of the whale this present year.  The Nantuckois then
were the only people who exercised this fishery to any extent at the
commencement of the late war.  Their country, from its barrenness,
yielding no subsistence, they were obliged to seek it in the sea
which surrounded them.  Their economy was more rigorous than that of
the Dutch.  Their seamen, instead of wages, had a share in what was
taken.  This induced them to fish with fewer hands, so that each had
a greater dividend in the profit.  It made them more vigilant in
seeking game, bolder in pursuing it, and parcimonious in all their
expences.  London was their only market.  When therefore, by the late
revolution, they became aliens in great Britain, they became subject
to the alien duty of 18l. 5s. the ton of oil, which being more than
equal to the price of the common whale oil, they were obliged to
abandon that fishery.  So that this people, who before the war had
employed upwards of 300 vessels a year in the whale fishery, (while
great Britain had herself never employed one hundred) have now almost
ceased to exercise it.  But they still had the seamen, the most
important material for this fishery; and they still retained the
spirit of fishing: so that at the reestablishment of peace they were
capable in a very short time of reviving their fishery in all its
splendor.  The British government saw that the moment was critical.
They knew that their own share in that fishery was as nothing.  That
the great mass of fishermen was left with a nation now separated from
them: that these fishermen however had lost their ancient market, had
no other resource within their country to which they could turn, and
they hoped therefore they might, in the present moment of distress,
be decoyed over to their establishments, and be added to the mass of
their seamen.  To effect this they offered extravagant advantages to
all persons who should exercise the whale fishery from British
establishments.  But not counting with much confidence on a long
connection with their remaining possessions on the continent of
America, foreseeing that the Nantuckois would settle in them
preferably, if put on an equal footing with those of great Britain,
and that thus they might have to purchase them a second time, they
confined their high offers to settlers in Great Britain.  The
Nantuckois, left without resource by the loss of their market, began
to think of removing to the British dominions: some to Nova Scotia,
preferring smaller advantages, in the neighbourhood of their ancient
country and friends; others to great Britain postponing country and
friends to high premiums.  A vessel was already arrived from Halifax
to Nantucket to take off some of those who proposed to remove; two
families had gone on board and others were going, when a letter was
received there, which had been written by Monsieur le Marquis de la
Fayette to a gentleman in Boston, and transmitted by him to
Nantucket.  The purport of the letter was to dissuade their accepting
the British proposals, and to assure them that their friends in
France would endeavour to do something for them.  This instantly
suspended their design: not another went on board, and the vessel
returned to Halifax with only the two families.

        In fact the French Government had not been inattentive to the
views of the British, nor insensible of the crisis.  They saw the
danger of permitting five or six thousand of the best seamen existing
to be transferred by a single stroke to the marine strength of their
enemy, and to carry over with them an art which they possessed almost
exclusively.  The counterplan which they set on foot was to tempt the
Nantuckois by high offers to come and settle in France.  This was in
the year 1785.  The British however had in their favour a sameness of
language, religion, laws, habits and kindred.  9 families only, of 33
persons in the whole came to Dunkirk; so that this project was not
likely to prevent their emigration to the English establishments, if
nothing else had happened.

        France had effectually aided in detaching the U. S. of America
from the _force_ of Great Britain.  But as yet they seemed to have
indulged only a silent wish to detach them from her _commerce_.  They
had done nothing to induce that event.  In the same year 1785, while
M. de Calonne was in treaty, with the Nantuckois, an estimate of the
commerce of the U. S. was submitted to the count de Vergennes, and it
was shewn that, of 3. millions of pounds sterling to which their
exports amounted, one third might be brought to France and exchanged
against her productions and manufactures advantageously for both
nations, provided the obstacles of prohibition, monopoly, and duty
were either done away or moderated as far as circumstances would
admit.  A committee, which had been appointed to investigate a
particular one of these subjects, was thereupon instructed to extend
its researches to the whole, and see what advantages and facilities
the Government could offer for the encouragement of a general
commerce with the United States.  The Committee was composed of
persons well skilled in commerce; and, after labouring assiduously
for several months, they made their report: the result of which was
given in the letter of his Majesty's Comptroller General of the 2d of
Octob. 1786. wherein he stated the principles which should be
established for the future regulation of the commerce between France
and the United States.  It was become tolerably evident, at the date
of this letter, that the terms offered to the Nantuckois would not
produce their emigration to Dunkirk; and that it would be safest in
every event to offer some other alternative which might prevent their
acceptance of the British offers.  The obvious one was to open the
ports of France to their oils, so that they might still exercise
their fishery, remaining in their native country, and find a new
market for its produce instead of that which they had lost.  The
article of Whale oil was accordingly distinguished, in the letter of
M. de Calonne, by an immediate abatement of duty, and promise of
further abatement after the year 1790.  This letter was instantly
sent to America, and bid fair to produce there the effect intended,
by determining the fishermen to carry on their trade from their own
homes, with the advantage only of a free market in France, rather
than remove to Great Britain where a free market and great bounty
were offered them.  An Arret was still to be prepared to give legal
sanction to the letter of M. de Calonne.  M. Lambert, with a patience
and assiduity almost unexampled, went through all the investigations
necessary to assure himself that the conclusions of the Committee had
been just.  Frequent conferences on this subject were held in his
presence; the Deputies of the Chambers of Commerce were heard, and
the result was the Arret of Dec. 29. 1787. confirming the abatements
of duty present and future, which the letter of Octob. 1786. had
promised, and reserving to his Majesty to grant still further favours
to that production, if on further information he should find it for
the interest of the two Nations.

        The English had now begun to deluge the markets of France with
their whale oils: and they were enabled by the great premiums given
by their Government to undersell the French fisherman, aided by
feebler premiums, and the American aided by his poverty alone.  Nor
is it certain that these speculations were not made at the risk of
the British Government, to suppress the French and American fishermen
in their only market.  Some remedy seemed necessary.  Perhaps it
would not have been a bad one to subject, by a general law, the
merchandize of every nation and of every nature to pay additional
duties in the ports of France exactly equal to the premiums and
drawbacks given on the same merchandise by their own government.
This might not only counteract the effect of premium in the instance
of whale oils, but attack the whole British system of bounties and
drawbacks by the aid of which they make London the center of commerce
for the whole earth.  A less general remedy, but an effectual one,
was to prohibit the oils of all _European_ nations: the treaty with
England requiring only that she should be treated as well as the most
favoured _European_ nation.  But the remedy adopted was to prohibit
all oils without exception.

        To know how this remedy will operate we must consider the
quantity of whale oil which France consumes annually, the quantity
she obtains from her own fishery; and if she obtains less than she
consumes, we are to consider what will follow this prohibition.

        The annual consumption of France, as stated by a person who has
good opportunities of knowing it, is as follows.

                                    _pesant_.  _quintaux_.  _tons_.
     Paris according to the
       registers of 1786 . . . .   2,800,000     28,000     1750
     27. other cities lighted by
       M. Sangrain . . . . . . .     800,000      8,000      500
     Rouen . . . . . . . . . . .     500,000      5,000      312 1/2
     Bordeaux  . . . . . . . . .     600,000      6,000      375
     Lyon  . . . . . . . . . . .     300,000      3,000      187 1/2
     Other cities, leather and
       light                         3,000,000   30,000     1875
                                     ----------  ------   ------
                                     8,000,000   80,000     5000

        Other calculations, reduce the consumption to about half this.
It is treating these with sufficient respect to place them on an
equal footing with the estimate of the person before alluded to, and
to suppose the truth half way between them.  We will call then the
present consumption of France only 60,000 quintals, or 3750 ton a
year.  This consumption is increasing fast as the practice of
lighting cities is becoming more general, and the superior advantages
of lighting them with whale oil are but now beginning to be known.

        What do the fisheries of France furnish? she has employed this
year 15. vessels in the Southern, and 2 in the Northern fishery,
carrying 4500 tons in the whole or 265 each on an average.  The
English ships, led by Nantuckois as well as the French, have as I am
told never averaged, in the Southern fishery, more than one fifth of
their burthen, in the best year.  The 15 ships of France, according
to this ground of calculation, and supposing the present to have been
one of the best years, should have brought, one with another, one
fifth of 265 tons, or 53 tons each.  But we are told they have
brought near the double of that, to wit 100 tons each and 1500 tons
in the whole.  Supposing the 2. Northern vessels to have brought home
the cargo which is common from the Northern fishery, to wit, 25 tons
each, the whole produce this year will then be 1550 tons.  This is 5
1/2 months provision or two fifths of the annual consumption.  To
furnish for the whole year, would require 40 ships of the same size,
in years as fortunate as the present, and 85 communibus annis, 44
tons, or one sixth of the burthen, being as high an average as should
be counted on, one year with another: and the number must be
increased with the increasing consumption.  France then is evidently
not yet in a condition to supply her own wants.  It is said indeed
she has a large stock on hand unsold occasioned by the English
competition.  33,000 quintals, including this year's produce, are
spoken of.  This is between 6. and 7. months provision: and
supposing, by the time this is exhausted, that the next year's supply
comes in, that will enable her to go on 5. or 6. months longer; say a
twelvemonth in the whole.  But, at the end of the twelvemonth, what
is to be done?  The Manufactures depending on this article cannot
maintain their competition against those of other countries, if
deprived of their equal means.  When the alternative then shall be
presented of letting them drop, or opening the ports to foreign whale
oil, it is presumable the latter will be adopted, as the lesser evil.
But it will be too late for America: her fishery, annihilated during
the late war, only began to raise its head on the prospect of market
held out by this country.  Crushed by the Arret of Sept. 28. in its
first feeble effort to revive, it will rise no more.  Expeditions,
which require the expence of the outfit of vessels, and from 9. to 12
months navigation, as the Southern fishery does, most frequented by
the Americans, cannot be undertaken in sole reliance on a market
which is opened and shut from one day to another, with little or no
warning.  The English alone then will remain to furnish these
supplies, and they must be received even from them.  We must accept
bread from our enemies, if our friends cannot furnish it.  This comes
exactly to the point to which that government has been looking.  She
fears no rival in the whale fishery but America.  Or rather, it is
the whale fishery of America of which she is endeavouring to possess
herself.  It is for this object she is making the present
extraordinary efforts by bounties and