Page:Memoir, correspondence, and miscellanies, from the papers of Thomas Jefferson - Volume 1.djvu/147

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All attempts to delude the people, or to abuse their understand- ing 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.*

If the principal offenders be fled,† or secreted from justice, in any case not touching life or member, the accessaries may, not- withstanding, be prosecuted as if their principal were convicted.‡

crime for which the party was committed. ‘Cum pro criminis qualitate in carcerem recepti fuerint, conspiraverint (ut ruptis vinculis aut fracto carcerc) evadant, ampliys (quam causa pro qua recepti sunt exposeit) puniendi sunt, videlicet ultimo supplicio, quamvis ex eo crimine innocentes inveniantur, prepter 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 Choke, 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 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 frangentibus priso- nam, 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 saying 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.

afylede ebere 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 deeper gebetan: if witches, or weirds, man- swearers, or murther-wroughters, or foul, defiled, open whore-queena, ay- where in the land were gotten, then force them off earth, and cleanse the na- tion, or in earth forth-fare them withal, buton they beseech, and deeply better. Ll. Ed. et Guthr. c. 11. ‘Sagae, mulieres barbara factitantes sacrificia, aut pestiferi, si cui mortem intulerint, neque id inficiari poterint, capitis poena esto.’ LI. 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 1. Jac. 1. 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.
 * Gif wiccan owwe wigleras nansworan, owwe morthwyrhtan owwe fule

† 1 Ann. c.9. § 2.

‡ As every treason includes within it a misprision of treason, so every fe- lony includes a misprision, or misdemeanor. 1 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.