64. A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital
Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it’s principal purpose1 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 forfiet the protection of his fellow citizens, but, after suffering a2 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, tho’ an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.
And forasmuch 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 withold prosecutions, to smother testimony, or to listen to it with bias,3 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.4
For rendering crimes and punishments therefore more proportionate to each other: Be it enacted by the General assembly that no crime shall be henceforth punished by deprivation of life or *limb except those hereinafter ordained to be so punished.
If a man º do levy war† against the Commonwealth5 or be adherent to the enemies of the commonwealth‡6 giving to them aid or7 comfort in the commonwealth, or elsewhere, and thereof be convicted of open deed, º by the evidence of two sufficient8 witnesses, or his own voluntary confession, the said cases, and ¶no others, shall be adjudged treasons which extend to the commonwealth, and the person so convicted shall suffer death by §hanging, and shall forfiet his lands and goods to the Commonwealth.
If any person commit Petty treason, or a husband murder his wife, a *parent his child, or a child his parent, he shall suffer death by hanging, and his body be delivered to Anatomists to be dissected.
Whosoever committeth murder by poisoning shall suffer death by poison.
Whosoever committeth murder by way of duel, shall suffer death by hanging; and if he were the challenger, his body, after death, shall be gibbeted. He who removeth it from the gibbet º shall be guilty of a misdemeanor; and the officer shall see that it be replaced.
Whosoever shall commit murder in any other way shall suffer death by hanging.
And in all cases of Petty treason and murder one half of the lands and goods of the offender shall be forfieted 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 at †duel, in which case no part of his lands or goods shall be forfieted to the kindred of the party slain, but instead thereof a moiety shall go to the Commonwealth.
Whosoever shall be guilty of *Manslaughter, shall for the first offence, be condemned to †hard labor for seven years, in the public works, shall forfiet 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.
And where persons, meaning to commit a ‡trespass only, or larceny, or other unlawful deed, and doing an act from which involuntary homicide hath ensued, have heretofore been adjudged guilty of manslaughter, or of murder, by transferring such their unlawful intention to an act much more penal than they could have in probable contemplation; no such case shall hereafter be deemed manslaughter, unless manslaughter was intended, nor murder, unless murder was intended.
Whenever sentence of death º shall have been pronounced against any person for treason or murder, execution11 shall be done on the next day but one after such sentence, unless it be Sunday, and then on the Monday following.
Whosoever shall be guilty of §§Rape **Polygamy,12 or ††Sodomy with man or woman shall be punished, if a man, by ‡castration, if a woman, by cutting thro’ the cartilage of her nose a hole of one half inch diameter at the least.
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 7. years together, or hath suffered the punishments before prescribed for rape, polygamy or sodomy.13
Whosoever on purpose and of malice forethought º shall maim¶ another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in §like sort:14 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 forfiet one half of his lands and goods to the sufferer.
Whosoever º shall *counterfiet 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 counterfieted coin, paper bills, or notes, knowing them to be counterfiet; or, for the sake of lucre, º shall† diminish, case, or wash any such coin,16 shall be condemned to hard labor six years in the public works, and shall forfiet all his lands and goods to the Commonwealth.17
If any person shall within this Commonwealth, º or being a citizen thereof shall without the same, wilfully destroy, or run away with any sea-vessel or goods laden on board thereof, or plunder or pilfer any wreck, º he shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers threefold.
Whatsoever act, if committed on any Mansion house, would be deemed §Burglary,19 shall be Burglary if committed on any other house; and he who is guilty of Burglary,19 shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured.
Whatsoever act, if committed in the night time, shall constitute the crime of Burglary, shall, if committed in the day be deemed Housebreaking*; and whosoever is guilty thereof shall be condemned to hard labor three years in the public works, and shall make reparation to the persons injured.
Whosoever shall be guilty of Horsestealing† shall be condemned to hard labor three years in the public works, and shall make reparation to the person injured.
Grand Larceny shall be where the goods stolen are of the value of ‡five dollars, and whosoever shall be guilty thereof shall be forthwith put in the pillory for one half hour, shall be condemned to hard¶ labor two years in the public works, and shall make20 reparation to the person injured.
Petty Larceny º 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 labor one year in the public works, and shall make reparation to the person injured.
Robbery or Larceny of Bonds, bills obligatory, bills of exchange, or promisory notes for the paiment of money or tobacco, lottery tickets, paper bills issued in the nature of money, or of certificates of loan on the credit of this commonwealth, or of all or any of the United States of America, or Inspectors notes for tobacco, shall be punished in the same manner as robbery or larceny of the money or tobacco due on, or represented by such papers.
Buyers and Receivers of goods º 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.
Prison breakers also shall be deemed Accessories after the fact to traitors or felons whom they enlarge from prison.§
All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15. stripes.*
If any offender º stand mute of obstinacy, 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.‡
Pardon and Privilege of clergy shall henceforth be abolished, that none may be induced to injure through hope of impunity. But if the verdict be against the defendant, and the court before whom the offence is heard and determined, shall doubt that it may be untrue for defect of testimony, or other cause, they may direct a new trial to be had.¶
No attainder shall work corruption of blood in any case.21
The aid of Counsel, º and examination of their witnesses on oath shall be allowed to defendants in criminal prosecutions.
Slaves guilty of any §offence punishable in others by labor in the public works, shall be transported to such parts in the West Indies, S. America or Africa, as the Governor shall direct, there to be continued in slavery.
MS (DLC); 15 pages, in TJ’s hand. The text of the Bill occupies only a part of this MS, the remainder being filled by TJ’s numerous citations, notes, and comments; the text occupies the left-hand column and the other matter the right. In the text as presented here, all of the notes and comments that TJ keyed to the text by means of symbols are similarly keyed, though the symbols are not identical; superscript numerals refer to the editors’ textual notes. (The MS does have superscript numerals, but these are not in TJ’s hand and were probably added later, perhaps by Ford [ii, 203–20].) The text of this Bill is printed in Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 46–7, but without TJ’s citations, notes, or comments; it is, however, divided into numbered sections. Another MS (MHi) was written by TJ in a vellum-bound commonplace book (probably dating from the 16th century) incorrectly labeled “Law Treaties”; it bears on an inside cover, in Edmund Randolph’s hand, the following: “Bought by E. Randolph of James Horrocks’s estate 1764. From E. R. to Mr. Jefferson.” This volume is a miscellany and includes, in addition to numerous memoranda and the text of “A Bill for proportioning crimes and punishments in cases heretofore capital,” a copy of the letter from TJ to Wythe of 1 Nov. 1778 transmitting the Bill, and the text of an essay entitled “Whether Christianity is a part of the Common law?” MS (MHi) occupies 20 pages, unnumbered; but pages [17–20] have been misplaced between pages [5–8] and pages [9–12]. The two MSS of Bill No. 64 are referred to here, for the sake of clarity, as MS (DLC) and MS (MHi). It is probable that MS (DLC) is the earlier of the two, but both are so carefully wrought that they must have been preceded by one or more trial drafts. Both MSS have been collated with the text as printed in Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , and all important variations among the three texts are indicated in the notes below. The beautiful form of these MSS has been commented upon; Malone (I, 269–70) adjudges MS (DLC) “an extraordinarily beautiful document,” and adds that TJ, for “the benefit of his own memory, … attached notes in Anglo-Saxon characters, in Latin, old French, and English, attesting the meticulous carefulness of his procedure. In printed versions these are naturally put at the bottom of the pages, but Jefferson himself placed them in columns, parallel with the text, after the manner of his old law book, Coke upon Littleton; and, as in the work of the old master, they frequently encroach upon the text. The penmanship is beautifully clear, and no other document that Jefferson ever drew better exhibits his artistry as a literary draftsman.” In his letter of transmittal to Wythe, 1 Nov. 1778, TJ wrote that “the extracts from the Anglo-Saxon law, the sources of the Common law, I wrote in the original for my own satisfaction; but I have added Latin or liberal English translations.” MS (DLC) employs Anglo-Saxon characters. MS (MHi) has transliterated Anglo-Saxon. The text here presented follows MS (DLC) and deals with the Anglo-Saxon passages according to the established procedure of modern editing. The editors are indebted to Professor Robert K. Root, Princeton University, for transcription of the Anglo-Saxon text of this document.
In view of the comments below it is pertinent to note that in the first part of MS (DLC) TJ spelled the word “forfeit” as he was accustomed to do; he changed suddenly to “forfiet,” going back to the beginning of the MS to alter the spelling from “forfeit” to “forfiet.” From that point on in MS (DLC) and throughout MS (MHi) the word is spelled “forfiet” as if it had always been TJ’s habit to do so. This may have been a sudden whim brought about by his conscious imitation of the form of old legal treatises. At any rate, it tends to prove that MS (DLC) is earlier than MS (MHi). In these MSS TJ appears also to have employed the spelling “counterfiet” for the first and only time.
The facts noted above concerning the form of the MSS are significant. Indubitably TJ did a vast amount of research in the preparation of this Bill; in the letter just cited he told Wythe that the notes accompanying the text were “made, as I went along, for the benefit of my own memory.” If this were so, why were these notes arranged in such studied form, blocked out on the pages and with notes separating text occasionally? Why was it necessary to make two copies of the MS in the same form? One cannot escape the conclusion that in this exfoliation of notes and citations, drawn from classical authors and the ancient Anglo-Saxon laws, as well as such modern penologists as Beccaria, TJ was not so much creating a memory-saving device as he was yielding to the temptation to indulge in pedantic ostentation—one of the few times in his career in which his enormous learning broke through his natural modesty and reserve (compare these learned notes with the forceful memoranda set forth in Notes and Proceedings on the Disestablishment of the Church, printed under 11 Oct. 1776). This mass of notes and citations, as well as the labored and artificial imitativeness in the form of the MS, may be partly responsible for the judgment that “during the years 1776–1779, he gave more time to this bill than to all the rest together” (Malone, i, 269); actually, TJ’s researches on the Case of Thomas Johnson, and his legislative labors on the court bills, the supply bills, and the land bills—to say nothing of his work on other parts of the revisal—must have severally occupied as much time as the Bill for Proportioning Crimes and Punishments. On its surface this Bill has all of the appearance of being an important and prodigious accomplishment, and both TJ’s own feeling at the time and the obvious learning it required may have led to an exaggerated opinion of its importance. Yet it was less a reform than an effort to bring the penalties of the criminal law into conformity with actual practice; “cruel and sanguinary [penal] laws” of the past had defeated their own purpose “by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias.” The preamble to this Bill stated in superb language the enlightened ideas of Beccaria and others; but the terms of the law that TJ proposed did little more than restate generally accepted practices concerning capital offenses. In respect to crimes of mayhem, the reliance upon the lex talionis contrasts shockingly with the liberal thought of the age. “How this last revolting principle came to obtain our approbation,” TJ wrote, “I do not remember. There remained indeed in our laws a vestige of it in a single case of a slave‥‥ But the modern mind had left it far in the rear of it’s advances” (Autobiography, Ford, description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson, “Letterpress Edition,” N.Y., 1892–1899 description ends i, 60). Even at the time of drafting the Bill, TJ felt it unwise to go beyond this vestigial remnant because the principle would be “revolting to the humanised feelings of modern times” and because the moral effect of public executions of such penalties would be questionable; he therefore urged reconsideration of this part of the Bill (TJ to George Wythe, 1 Nov. 1778). In this same communication, TJ said that he had followed “the scale of punishments settled by the Committee, without being entirely satisfied with it”; strangely, however, the only documentary evidence remaining of the plan agreed upon by the Committee contains no statement whatever in support of the principle as implemented in the Bill, though it does provide for dismemberment in the case of certain crimes (see Document i, above, and Document iv, Part 5, below, in this series).
These harsh features of the Bill undoubtedly contributed to its defeat. Madison presented it on 31 Oct. 1785, it was postponed 14 Dec. to the next session, and on 15 Dec. the committee of the whole, to which it had been referred, was discharged from further proceeding on it (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 92, 94). Two days later Madison reported to James Monroe that this Bill “was the one at which we stuck after wading thro’ the most difficult parts of it” (Madison, Writings, ed. Hunt, ii, 205). On 1 Nov. 1786 the Bill was again brought in, read twice, referred to the committee of the whole, and amended; it was then engrossed, read the third time, and defeated (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1786, 1828 edn., p. 16–17, 67, 86, 96). While it was still in the hands of the committee Madison reported to TJ that “the bill … on which we were wrecked last year, has after undergoing a number of alterations, got thro’ a Committee of the whole; but it has not yet been reported to the House, where it will meet with the most vigorous attack. I think the chance is rather against its final passage in that branch of the Assembly, and if it should not miscarry there, it will have another gauntlet to run through the Senate” (Madison to TJ, 4 Dec. 1786). The Bill was defeated in the House by a single vote (Madison to Washington, 24 Dec. 1786, Writings, ed. Hunt, ii, 303). Madison, in reporting this to TJ, said that the Bill had been “altered so as to remove most of the objections as was thought,” though he did not explain what alterations had taken place. He did add, however, that “The rage against Horse stealers had a great influence on the fate of the Bill. Our old bloody code is by this event fully restored‥‥” (Madison to TJ, 15 Feb. 1787).
It is possible that TJ had Bill No. 64 printed in 1779, for Philip Mazzei later asserted that, when he sailed from Virginia for Nantes in June 1779, he carried “5 of Mr. Jefferson’s proposals to the Assembly relative to criminal laws” (see Mazzei to TJ, 19 Mch. 1780).
1. Note the form in which TJ here states the principal purpose which induced men to enter into society; in the case of the Declaration of Independence, “governments are instituted among men” to safeguard the natural rights of “life, liberty, and the pursuit of happiness”—a variation which has been variously interpreted (Boyd, Declaration of Independence, 1945, p. 3–5).
3. Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends adds at this point: “and by producing in many instances a total dispensation and impunity under the names of pardon and privilege of clergy.” MS (DLC) and MS (MHi) agree.
4. Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends adds: “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.” MS (DLC) and MS (MHi) agree. In DLC: TJ Papers, 232: 42062 there is, in the hand of the same clerk who wrote the Bill described under Bill No. 102, note 1, below, a fragment which agrees with the reading of the Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends as given here and in note 3, above. This fragment covers only that part of the Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends which includes the words “to smother testimony … while contemplating.”
5. At this point in MS (DLC) the words “in the same” appear, enclosed in a rectangle; they are bracketed in MS (MHi) but are not in Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends .
6. At this point in MS (DLC) the words “within the same” appear, also enclosed in a rectangle; they are bracketed in MS (MHi) but are not in Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends .
9. I.e., and killing a man.
10. In MS (MHi) the symbol for the note referring to Beccaria is placed at this point and the note begins “See Beccaria.sect.19. Homicides are 1. Justifiable …”; the symbol in MS (DLC) is placed at the end of the sentence, as above, and the note begins: “Beccaria. §32 … turn to the last page for Notes on this paragraph.” On p. 14 of MS (DLC) the note continues, as in MS (MHi), “Homicides are 1. Justifiable‥‥” (This displacement of part of the note on homicide, together with the evidence presented above in connection with the spelling “forfieture,” proves that MS [MHi] was made after MS [DLC] and was probably copied from it.) In addition to this, MS (DLC) has another footnote, “Beccaria. §.19.,” opposite the next paragraph of the text which TJ mistakenly copied into MS (MHi) at this point, omitting the reference to “Beccaria.§.32.”
14. Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends reads: “Whosoever, on purpose, shall disfigure another by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, or shall maim him, shall be maimed or disfigured in like sort.” MS (MHi) agrees with Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends in this passage, indicating that TJ himself made the change after he had produced MS (DLC).
15. Brackets in MS.
16. Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends reads: “shall diminish each, or any such coin.”
17. Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends adds another section: “The making false any such paper bill, or note, shall be deemed counterfeiting.”
20. Report omits: “shall.”
21. This prohibition of one of the worst aspects of Bills of Attainder carries the inference that TJ considered such bills justifiable and proper under certain circumstances, as he did later in defending his Bill of Attainder against Josiah Philips (q.v., under 28 May 1778). Yet, in the passage of this Bill defining treason and establishing its penalty, TJ employed the same phrase—“levy war against the Commonwealth”—that he employed in the Bill attainting Philips. Here, however, he requires “two sufficient witnesses” or confession to establish guilt; in the Bill of Attainder against Philips, he assumed that the legislature had power in summary form to adjudge a man guilty. It is worth noting that, as TJ was completing work on the present Bill, Philips lay under sentence of death at Williamsburg; the alterations indicated in notes 5 and 6 above may have been made by TJ with the Philips case in mind.