Thomas Jefferson Papers

To Thomas Jefferson from Francis Walker Gilmer, 23 June 1819

Richmond. 23. June 1819.

dear Sir.

It is never without self-reprehension that I make a request which can for a moment draw your mind from the great concerns in which it is constantly engaged. But you are the only person living who can answer a very interesting question which has arisen in the general court. A citizen of Virginia has been indicted before that tribunal for a felony committed in George Town in the district of Columbia. Both the court & bar are at a loss to understand the real meaning of the statute on which the indictment is founded. It was first reported in June. 1779. by yourself. mr. Wythe and Pendleton, in these words.

  “a bill concerning treasons, felonies, & other offences committed out of the jurisdiction of this commonwealth.”

§I.“Be it enacted that all high treasons, misprisions & concealments of high treasons and other offences except piracies & felonies committed by any citizen of this commonwealth in any place out of the jurisdiction of the courts of common law of this commonwealth, and all felonies committed by citizen against citizen [the case before the court] in any such places other than the high seas [in which case jurisdiction was given the U.S. by 9th art: of the Confederation] shall be inquired, tried heard, determined & judged before any one or more of the judges of the high court of chancery together with any two or more of the judges of the general court at such time and place within the commonwealth as shall be limited by summons to be sent to all the judges from the governor after the common course of the laws of this land used for the like offences committed within the body of a county.” [Report of Commn of Revisors. ch. 66.]

The bill was not enacted into a law until 1786. when jurisdiction of such cases was given to the general court, in other respects the bill remained unaltered.

I do not suppose the revisors could have designed to punish offences committed in foreign countries competent to enforce their own laws, but to remedy a particular defect in our own system when the bill was reported & passed.

Under the colonial government maritime felonies were tried in a court of admiralty constituted by a commission of oyer and terminer issued by the Provincial governor. The revolution put an end to this mode of constituting courts of admiralty, and the general court by its original constitution never had jurisdiction of such offences. When our admiralty court was established in conformity with your bill in 1779, jurisdiction was expressly taken away in all capital offences. Hence maritime felonies punishable capitally were within the jurisdiction neither of the general nor of the admiralty court: and piracies & felonies on the high seas only were left to the federal government; all crimes therefore committed on our bays & navigable rivers would have gone unpunished but for this statute. Now I suppose the bill you reported [enacted 1. Reg. Code c.136§7.] was designed to embrace precisely such cases as were excluded from the admiralty jurisdiction, and not offences committed in the body of another state or country: which would be against the first principles of legislation, and the fundamental axioms of sound politics.

Your recollection of the state of the colony in reference to the law, and of the object of the revisors, with any details your leisure may permit concerning the revisal, will be very gratifying to me & useful to the profession; the more so as another revisal is now going on, and it is very desirable to have the statute understood before it is re-printed.

I omitted to thank you for Tracy’s book which you were so good as to send me. I have read it with edification & pleasure, it adds to the many favors for which I was before obliged to you.

I pray you accept my thanks & best wishes for your health &c.

F. W. Gilmer.

MoSHi: Francis Walker Gilmer Papers.

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