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To Thomas Jefferson from Mann Page, enclosing Court Proceedings against a Slave, together with Jefferson’s Reprieve, 13 May 1781

From Mann Page, enclosing Court Proceedings against a Slave, together with Jefferson’s Reprieve

Mann’s field May 13th. 1781

Dear Sir

As one of Colo. Tayloe’s Executor’s I take the Liberty to solicit you on Behalf of Billy, a Negro Man belonging to that Estate, who is now under Sentence of Death, by the Judgement of the Court of Prince William County. The Crime for which he is condemned, and the Proceedings of the Court will be made known to you by the enclosed Papers. Not entertaining a Doubt myself of the Illegality of the Sentence of the Court I earnestly entreat you (if it can be done) to grant a Pardon to the Fellow, but if that cannot be done, to repreive him.

I have the Honour to be with great Respect Sir Your mo: obdt. hble. Servant,

Mann Page

A reprieve till the last day of June to be made out.

Th:J.

Enclosure

Prince Wm. County to wit.

Cuthbert Bullitt Attorney for the commonwealth for the County aforesaid giveth information to the Court that Billy alias Will alias William late of the parish of Dettingen in the County aforesaid a mulatto slave belonging to John Tayloe Esqr. late of Richmond County in the Commonwealth aforesaid upon the second day of April in the year of our Lord 1781. at the said parish of Dettingen in the County of Prince Wm. aforesaid with force and arms, &c. did feloniously and traitorously adhere to the Enemies of the Commonwealth and gave them aid and comfort and upon the said second day of April at the said parish of Dettingen in the County of Prince William aforesaid did in company of and conjunction with divers enemies of the commonwealth in an armed vessel feloniously and traitorously wage and levy war against the Commonwealth to the great danger of subverting thereof and against the act of assembly in such case made and provided and the peace of the said Com[m]onwealth and the dignity thereof.

C. Bullitt.

At a Court of Oyer and terminer called and held at the Court house of Prince William County the 8th. day of May 1781. for the trial of Billy alias Will alias William a mulatto Slave the property of John Taylor Esqr. for Treason.

Present.
Henry Lee William Carr } Gentlemen Justices
Foushee Tebbs Richd. Graham
William Tebbs. William Brent.

The said Slave Billy alias Will alias William late of the said County of Prince Wm. being brought to the bar of the Court and indicted for treason in joining the Enemies of this Commonwealth, upon his arraignment says he is not guilty. Upon hearing the several witnesses, It is the opinion of the Court that he is guilty and that he suffer death and be executed agreeable to the act declaring what shall be treason And that the Sheriff of the said County on the twenty fifth of this Instant between the hours of Eleven and two of the same day do execution thereon at the common gallows of the said County by causing the said Slave to be hanged by the neck until dead and his head to be severed from his body and stuck up at some public cross road on a pole. And the said Court do say that the said Slave is worth twenty seven thousand pounds current money.

Copy test Robt. Graham Clk. Cur.

May 11th. 1781

We set on the trial of Billy a Mulatto slave belonging to John Tayloe Esqr. who was Convicted and Condemned by the Court for High Treason by four of the Judges. We were against his Condemnation because a slave in our opinion Cannot Commit Treason against the State not being Admited to the Priviledges of a Citizen owes the State No Allegiance and that the Act declaring what shall be treason cannot be intended by the Legislature to include slaves who have neither lands or other property to forfiet and there was no Positive Proof before the Court that the said Slave went Voluntarily On board of the Enemys Vessel and took up Arms; there was Proof that he was taken in Company of Part of the Crew of the said Vessel on shore who made their Escape on being pursued by An Armed Vessel from Alexandria. On his defence he says he was taken in an Oyster boat and forced on board against his will and that he never took up Arms against the Country and no Positive Proof that he Certainly did Aid or Assist the Enemy of his own free will.

H: Lee

William Carr

RC (Vi); addressed and endorsed; TJ’s instructions are written in his own hand on the address leaf of Page’s letter. Enclosures (Vi): (1) Indictment and transcript of record are in hand of Robert Graham; (2) statement of Lee and Carr is in hand of Carr and signed by both.

The sentence of the court that he … be executed agreeable to the act was not in accord with the Act of 1776 “declaring what shall be treason” (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends x, 168), which merely provided that one convicted of treason should suffer death without benefit of clergy and forfeit lands and chattels; there was nothing in it concerning the manner of execution or authorizing dismemberment (the summary of the indictment in CVSP description begins Calendar of Virginia State Papers … Preserved in the Capitol at Richmond description ends , ii, 90, omits the part of the sentence about decapitation). Moreover, the sentence violated a provision of the Act of Oct. 1777 for establishing a General Court which provided that, when sentence of death was passed on any prisoner, at least one calendar month should elapse between judgment and execution (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 417). TJ’s bill for proportioning crimes and punishments of 1779 had provided that one convicted of treason should “suffer death by hanging” and that execution should “be done on the next day but one after such sentence” (Revisal of the Laws, Bill No. 64, Vol. 2: 493–7). The Revisal of the Laws also contained a bill governing the method of trying slaves charged with treason; it provided that at least five justices of the county court should sit as a bench and try the case “without juries, upon legal evidence” and that no slave should be convicted except by unanimous decision of the judges (same, Vol. 2: 616–17; this last proviso was changed to three-fourths of the sitting justices by the Act as adopted in 1786; for an instance of a court’s judgment in such a case being passed in violation of this proviso, see CVSP description begins Calendar of Virginia State Papers … Preserved in the Capitol at Richmond description ends , ii, 622). TJ’s reprieve was mandatory. The Act of 1776 provided that the Governor could “in no wise have or exercise a right of granting pardon” to any person convicted of treason, but could only suspend execution of sentence “until the meeting of the general assembly, who shall determine whether such person or persons are proper objects of mercy or not” (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 168). Even this was probably more than TJ thought proper, for in his draft Constitution for Virginia of 1776 he had provided that there should be no “power any where to pardon crimes or to remit fines or punishments”—a restriction that may have arisen from the emphasis TJ placed upon the doctrine of the separation of powers of government (Vol. 1: 359, 360, 365 note 4). But in 1782 an interesting case arose in which Edmund Randolph advised Governor Benjamin Harrison that the express prohibition of right to pardon in treason convictions would not bar his prerogative of pardon before trial of one charged with treason; this extraordinary opinion was no doubt due to the fact that Harrison had already issued a passport to one William Andrews, a Loyalist, presumably without knowing that he lay under suspicion of treason and this, as Randolph pointed out, reduced the issue to one of expediency and made it “a political rather than a legal inquiry” (CVSP description begins Calendar of Virginia State Papers … Preserved in the Capitol at Richmond description ends , iii, 193–4). TJ’s reprieve was probably extended to the end of June because (1) he was not certain whether the assembly would actually meet late in May or even in June and (2), in that event, his successor as Governor would have an opportunity to extend the reprieve to the time of meeting of the legislature. As a matter of fact, it was not until 7 June 1781 that Mann Page presented to the House of Delegates a petition for the pardon of John Tayloe’s Negro slave Will. His petition was referred to the committee for courts of justice and on 9 June the following report of the committee was read and agreed to by the House: “It appears to your committee, from the record and proceedings of the court of Prince William county, that Billy, alias Will, alias William, a mulatto slave belonging to the estate of the said John Tayloe, deceased, was, before the said court, indicted for treason and sentenced to be hanged. It also appears … that upon application being made to his excellency Thomas Jefferson, Esq., the then Governor of Virginia, a reprieve was obtained for the said slave till the last day of the present month. It farther appears … that the indictment and proceedings thereon against the said slave were illegal. … Resolved, that it is the opinion of this committee, That the petition … is reasonable”; the House thereupon ordered the committee to bring in a bill pursuant to this resolution, but apparently the matter was settled by joint resolution rather than by bill, for on 14 June the Senate agreed to the resolution of the House (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , May 1781, 1828 edn., p. 11, 12, 17).

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