Wilmington Jany. 12. 1808.
My Dear Sir,
It is a principle of the common law, that every breach of the provisions of any statute, or any regulation adopted by virtue thereof subjects the party to indictment & punishment by fine & imprisonment. 4. Dunford & Easts Rep: 202. And this even, when a penalty is prescribed for the particular offence in the Statute itself, provided it is done in a seperate substantive section. In this case the contravention of the enacting clause renders the party subject to an indictment at common law as it is termed, & the proceeding under the Statute for the penalty annexed in a distinct section is considered cumulative. But where the punishment is combined in the same clause with the enacting provisions, then the only proceeding that can be maintained must be under the Statute & the only punishment, that can be inflicted is that prescribed by the Statute. A perusal of the case above refered to, will explain these principles.
I have supposed that a provision in our laws, positively adopting this principle of the common law, to a correct extent, was very much to be desired, as you know we have always disputed the existence of a Common law jurisdiction in the Courts of the United States. I enclose you a bill drawn up with some attention, for the above purpose, & submit it, to your examination. You will find that in all cases, (whether it be in the same or a seperate clause) in which a particular penalty or punishment is prescribed, that alone, can be inflicted. This I think a correct departure from the Common law rules. It provides fine & imprisonment, or either. I do not like the idea of limitation to the Court’s discretion, & yet there are cases particularly as to the revenue, where the temptation is so great that it would be difficult to fix a maximum, & the question is whether the amendments to the constitution, agst. excessive fines & cruel punishments would sufficiently restrain the Courts. In the State Courts, in general, exercising a common law jurisdiction, the fines & imprisonment they impose are discretionary.
I find by conversation with persons well acquainted with the Irish trade & who have received late information, to be relied on, from that country, the crops have failed both of corn, & potatoes. Cut off from Europe, our embargo must seriously affect them in this respect. But there is one consideration of great importance. The embargo will deprive them of this supply of ⟨flax⟩ seed. For this purpose it came in the nick of time. On this subject I have conversed with Capt. N. Geddes & L Carsewell both perfectly acquainted with it. They agree that for the last 15. years, 20,000 hogsheads have been shipped from America & an equal number from the Baltic, from which quarter they will this season have no supply. Not above 5,000 hogsheads have got out from all the ports in this country. The rest has been stopped. This will be felt in Ireland as a great calamity by the landholders, renters labourers & finally the manufacturers, for they can raise no flax, but from the scanty supply that has gone from hence, & the small pittance of old seed, which very often fails, & of which the quantity must be small. To us the loss of the price of a few hogsheads of flax seed is a cypher compared to the serious injury Ireland will sustain. I presume those are the vessels the Philada. merchants wish to set out but I ⟨expect⟩ they will be defeated. There ought however to be an armed vessel of some kind in this bay to aid the revenue cutter in enforcing the laws.
The opinion of Mr. Gurley, as to the appointment of a clerk, contains reason which are unanswerable & I think it is conclusive But lest first impressions may appear on reconsideration erroneous I shall keep it until I come on to Washington. My wish to bring Mrs. Rodney whom I must at last leave behind in consequence of my ⟨ ⟩ situation & the lameness of one of my horses has prevented my starting agreeably to my expectations. Tho’ if Rose had got on, I should have thrown myself in the mail stage. I shall see you in a very few days.
I had expected from a variety of circumstances that Bayard would have been well disposed this session, but I fear now I was mistaken as one of the enclosed letters will shew you. The other is from H. Clay who you will find is much incensed agst. Burr & I am glad to find he has written to me in such a style. D. Sir, Your Very obt. & H Ser
C. A. Rodney
P. S. Old Dr. Tilton who would not leave his farm for any post, has promised me however a treatise on the military medical department in which he has had ⟨ ⟩ experience.
In the State Trials, vol. XI. 339. you will find ⟨Haymore⟩’s Argument. It is not in his Law treatis, which I have at Washington, but in a small volume entitled ⟨Haymore⟩’s Arguments which is very scarce.
DLC: Papers of James Madison.