**** The stat. 25 E. 3. directs all other cases of treasonto await the opinion of Parliament. This has the effect ofnegative words, excluding all other treasons. As we dropthat part of the statute, we must, by negative words,prevent an inundation of common law treasons. I strike outthe word ‘it,’ therefore, and insert ‘the said cases and noothers.’ Quaere, how far those negative words may affect thecase of accomplices above mentioned? Though if their casewas within the statute, so as that it needed not await theopinion of Parliament, it should seem to be also within ouract, so as not to be ousted by the negative words.
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.
* By the stat. 21.Tac. 1. c. 27. and Act Ass. 1710, c. 12.concealment by the mother of the death of a bastard child ismade murder. In justification of this, it is said, thatshame is a feeling which operates so strongly on the mind,as frequently to induce the mother of such a child to murderit, in order to conceal her disgrace. The act ofconcealment, therefore, proves she was influenced by shame,and that influence produces a presumption that she murderedthe child. The effect of this law, then, is, to make what,in its nature, is only presumptive evidence of a murder,conclusive of that fact. To this I answer, 1. So manychildren die before, or soon after birth, that to presumeall those murdered who are found dead, is a presumptionwhich will lead us oftener wrong than right, andconsequently would shed more blood than it would save. 2. Ifthe child were born dead, the mother would naturally chooserather to conceal it, in hopes of still keeping a goodcharacter in the neighborhood. So that the act ofconcealment is far from proving the guilt of murder on themother. 3. If shame be a powerful affection of the mind, isnot parental love also? Is it not the strongest affectionknown? Is it not greater than even that of self-preservation? While we draw presumptions from shame, oneaffection of the mind, against the life of the prisoner,should we not give some weight to presumptions from parentallove, an affection at least as strong in favor of life? Ifconcealment of the fact is a presumptive evidence of murder,so strong as to overbalance all other evidence that maypossibly be produced to take away the presumption, why nottrust the force of this incontestable presumption to thejury, who are, in a regular course, to hear presumptive, aswell as positive testimony? If the presumption, arising fromthe act of concealment, may be destroyed by proof positiveor circumstantial to the contrary, why should thelegislature preclude that contrary proof? Objection. Thecrime is difficult to prove, being usually committed insecret. Answer. But circumstantial proof will do; forexample, marks of violence, the behavior, countenance, &c.of the prisoner, &c. And if conclusive proof be difficult tobe obtained, shall we therefore fasten irremovably uponequivocal proof? Can we change the nature of what iscontestable, and make it incontestable? Can we make thatconclusive which God and nature have made inconclusive?Solon made no law against, parricide, supposing itimpossible any one could be guilty of it; and the Persians,from the same opinion, adjudged all who killed their reputedparents to be bastards: and although parental, be yetstronger than filial affection, we admit saticide proved onthe most equivocal testimony, whilst they rejected all proofof an act, certainly not more repugnant to nature, as of athing impossible, improvable. See Beccaria, § 31.
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, shall be guilty of a misdemeanor; and the officer shall see that it be replaced.
* 25 G. 2. c. 37.
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 forfeited 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 a duel,* in which case, no part of his lands or goods shall be forfeited to the kindred of the party slain, but, instead thereof, a moiety shall go to the Commonwealth.
* Quære, if the estates of both parties in a duel should notbe forfeited? The deceased is equally guilty with a suicide.
The same evidence* shall suffice, and order and course** of trial be observed in cases of petty treason, as in those of other*** murders.
* Quære, if these words may not be omitted? By the Commonlaw, one witness in treason was sufficient. Foster, 233.Plowd. 8. a. Mirror, c. 3. § 34. Waterhouse on Fortesc deLaud. 252. Carth. 144 per Holt. But Lord Coke, contra, 3Inst 26. The stat. 1 E. 6. c 12. &5E.6. c. 11. firstrequired two witnesses in treason. The clause against hightreason supra, does the same as to high treason; but itseems if 1st and 5th E. 6. are dropped, petty treason willbe tried and proved, as at Common law, by one witness. Butquære, Lord Coke being contra, whose opinion it is everdangerous to neglect.** These words are intended to take away the peremptorychallenge of thirty-five jurors. The same words being used 1& 2 Ph. k. M. c. 10. are deemed to have restored theperemptory challenge in high treason; and consequently aresufficient to take it away. Foster, 237.*** Petty treason is considered in law only as an aggravatedmurder. Foster, 107,323. A pardon of all murders, pardonspetty treason. 1 Hale P. C. 378. See 2 H. P. C. 340, 342. Itis also included in the word ‘felony,’ so that a pardon ofall felonies, pardons petty treason.
Whosoever shall be guilty of manslaughter,* shall, for the first offence, be condemned to hard labor** for seven years, in the public works, shall forfeit 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.
* Manslaughter is punishable at law, by burning in the hand,and forfeiture of chattels.** It is best, in this act, to lay down principles only, inorder that it may not for ever be undergoing change: and, tocarry into effect the minuter parts of it; frame a bill ‘forthe employment and government of felons, or male-factors,condemned to labor for the Commonwealth,’ which may serve asan Appendix to this, and in which all the particularsrequisite may be directed: and as experience will, from timeto time, be pointing out amendments, these may be madewithout touching this fundamental act. See More’s Utopia pa.50, for some good hints. Fugitives might, in such a bill, beobliged to work two days for every one they absentthemselves.
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.
* The shooting at a wild fowl, and killing a man, ishomicide by misadventure. Shooting at a pullet, without anydesign to take it away, is manslaughter; and with a designto take it away, is murder. 6 Sta. tr. 222. To shoot at thepoultry of another, and thereby set fire to his house, isarson, in the opinion of some. Dalt. c. 116 1 Hale’s P. C.569, contra.
In other cases of homicide, the law will not add to the miseries of the party, by punishments or forfeitures.*
* Beccaria, § 32. Suicide. Homicides are, 1. Justifiable. 2.Excusable. 3. Felonious. For the last, punishments have beenalready provided. The first are held to be totally withoutguilt, or rather commendable. The second are, in some cases,not quite unblamable. These should subject the party tomarks of contrition; viz. the killing of a man in defence ofproperty; so also in defence of one’s person, which is aspecies of excusable homicide; because, although cases mayhappen where these also are commendable, yet most frequentlythey are done on too slight appearance of danger; as inreturn for a blow, kick, fillip, &c; or on a person’sgetting into a house, notanirno furandi, but perhapsveneris causa, &c. Bracton says, ‘Si quis furem noctupnumocciderit, ita demum impune foret, si parcere ei sinepericulo suo non potuit; si autem potuit, aliter erit.’‘Item erit si quis hamsokne qua; dicitur invasio domuscontra pacem domini regis in domo sua se defenderit, etinvasor occisus fuerit; impersecutus et inultus ramanebit,si ille quem invasit aliter se defendere non potuit; diciturenim quod non est dignus habere pacem qui non vult observareearn.’ L.3. c.23. § 3. ‘Qui latronetn Occident, non tenetur,nocturnum vel diurnnm, si aliter periculum evadere nonpossit; tenetur ta-men, si possit. Item non tenetur si perinforlunium, et non anitno et voluntate occidendi, needolus, nec culpa ejus inveniatur.’ L.3. c.36. § 1. The stat.24 H. 8. c. 5 is therefore merely declaratory of the Commonlaw. See on the general subject, Puffend. 2. 5. § 10, 11,12, 16, 17. Excusable homicides are by misadventure, or inself-defence. It is the opinion of some lawyers, that theCommon law punished these with death, and that the statuteof Marlbridge, c. 26. and Gloucester, c. 9. first took awaythis by giving them title to a pardon, as matter of right,and a writ of restitution of their goods. See 2 Inst, 148.315; 3 Inst. 55. Bracton, L. 3. c. 4. § 2. Fleta L, 1. c.23. § 14, 15; 21 E. 3. 23. But it is believed never to havebeen capital. 1 H. P. C. 425; 1 Hawk. 75; Foster, 282; 4 Bl.188. It seems doubtful also, whether at Common law, theparty forfeited all his chattels in this case, or only paida weregild. Foster,ubi supra, doubts, and thinks it of noconsequence, as the statute of Gloucester entitles the partyto Royal grace, which goes as well to forfeiture as life. Tome, there seems no reason for calling these excusablehomicides, and the killing a man in defence of property, ajustifiable homicide. The latter is less guiltless thanmisadventure or self defence.Suicide is by law punishable by forfeiture of chattels. Thisbill exempts it from forfeiture. The suicide injures thestate less than he who leaves it with his effects. If thelatter then be not punished, the former should not. As tothe example, we need not fear its influence. Men are toomuch attached to life, to exhibit frequent instances ofdepriving themselves of it. At any rate, the quasi-punishment of confiscation will not prevent it. For if onebe found who can calmly determine to renounce life, who isso weary of his existence here, as rather to make experimentof what is beyond the grave, can we suppose him, in such astate of mind, susceptible of influence from the losses tohis family by confiscation? That men in general, too,disapprove of this severity, is apparent from the constantpractice of juries finding the suicide in a state ofinsanity; because they have no other way of saving theforfeiture. Let it then be done away.
Whenever sentence of death shall have been pronounced against any person for treason or murder, execution shall be done on the next day but one after such sentence, unless it be Sunday, and then on the Monday following.*
* Beccaria, § 19; 25 G. 2. c. 37.
Whosoever shall be guilty of Rape,* Polygamy,** or Sodomy,*** with man or woman, shall be punished, if a man, by castration,**** if a woman, by cutting through the cartilage of her nose, a hole of one half inch in diameter at the least.
* 13 E. 1. c. 34. Forcible abduction of a woman havingsubstance, is felony by 3 H. 7, c 2; 3. Inst. 61; 4 Bl. 208.If goods be taken, it will be felony as to them, withoutthis statute: and as to the abduction of the woman, quære ifnot better to leave that, and also kidnapping, 4 Bl. 219. tothe Common law remedies, viz. fine, imprisonment, andpillory, Raym. 474; 2 Show. 221; Skin. 47; Comb. 10. thewrits ofHomine replegiando, Capias in Withernam, Habeascorpus, and the action of trespass? Rape was felony at theCommon law. 3 Inst. 60 but see 2 Inst. 181. Further—for itsdefinition see 2 Inst. 180. Bracton L.3. 28. § 1. says, thepunishment of rape is ‘amissio membrorum, ut sit membrumpromembra, quia virgo, cum corrumpitur, membrum amittit, etideo corruptor puniatur in eo in quo deliquit; oculos igituramittat propter aspectum decoris quo virginem concupivit;amittat et testiculos qui calorem stupri induxerunt. Olimquidem corruptores virginitatis et castitatis suspendebanturet eorum fautores, &c. Modernis tamen temporibus aliterobservatur,’ &.c. And Fleta, ‘Solet justiciarius proquolibet mahemio ad amissionem testiculorum vel oculorumconvictum coudemnare, sed non sine errore, eo quod idjudicium nisi in corruptione virginum lantum competebat; nampro virginitatis corruptione solebant abscidi et meritojudicari, ut sic pro membro quod abstulit, membrum per quoddeliquit amitteret, viz. lesticulos, qui calorem stupriinduxerunt,’ &c. Fleta. L. 1. c. 40. § 4. ‘Gif theow mantheowne to nydhffimed genyde, gabete mid his eowende: Siservus servam ad sfuprum coegerit, compenset hoc virga suavirili. Si quis pnellam,’ &c. Ll.Æliridi. 25. ‘Hi purgstfemme per forze forfait ad les membres.’ LI. Gul. Conq. 19.** 1 Jac. 1. c. 11. Polygamy was not penal till the statuteof 1 Jac. The law contented itself with the nullity of theact. 4 Bl. 163. 3 Inst. 88.*** 25. H. 8. c. 6. Buggery is twofold. 1. With mankind, 2.with beasts. Buggery is the genus, of which Sodomy andBestiality are the species. 12 Co. 37. says, In Dyer, 304. aman was indicted, and found guilty of a rape on a girl ofseven years old. The court doubted of the rape of so tendera girl; but if she had been nine years old, it would havebeen otherwise.’ 14 Eliz. Therefore the statute 18 Eliz. c.6, says, ‘For plain declaration of law, be it enacted, thatif any person shall unlawfully and carnally know and abuseany woman child, under the age of ten years, &c. he shallsuffer as a felon, without allowance of clergy.’ Lord Hale,however, 1 P. C. 630. thinks it rape independent of thatstatute, to know carnally a girl under twelve, the age ofconsent. Yet, 4 Bl. 212. seems to neglect this opinion; andas it was founded on the words of 3 E. 1. c. 13. and this iswith us omitted, the offence of carnally knowing a girlunder twelve, or ten years of age, will not be distinguishedfrom that of any other. Co. 37. says ‘note that Sodomy iswith mankind.’ But Finch’s L. B. 3. c. 24. ‘Sodomitry is acarnal copulation against nature, to wit, of man or woman inthe same sex, or of either of them with beasts.’ 12 Co 36.says, ‘It appears by the ancient authorities of the lawthat this was felony.’ Yet the 25 H. 8. declares it felony,as if supposed not to be so. Britton, c, 9. says, thatSodomites are to be burnt. F. N. B. 269. b. Fleta, L 1. c.37. says, ‘Pecorantes et Sodomise in terra, viviconfodiantur.’ The Mirror makes it treason. Bestiality cannever make any progress; it cannot therefore be injurious tosociety in any great degree, which is the true measure ofcriminalityin foro cirili, and will ever be properly andseverely punished, by universal derision. It may, therefore,be omitted. It was anciently punished with death, as it hasbeen latterly. LI Ælfrid. 31. and 25 H. 8. c. 6. seeBeccaria, § 31. Montesq.****Bracton, Fleta, &c.
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 seven years together, or hath suffered the punishments before prescribed for rape, polygamy, or sodomy.
Whosoever, on purpose, and of malice forethought, 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: 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 forfeit one half of his lands and goods to the sufferer.
* 22 &l 23 Car. 2, c. 1. Maiming was felony at the Commonlaw. Britton, c 95. Mehemiurn autem dici poterit, ubialiquis in aliqua. parte sui corporis la sionern acceperit,per quam affectus sit inutilis ad pugnandum: ut sirnanusampuletur, vel pes, octilus privetur, vel scerda de ossecapitis lavetnr, vel si quis dentes praer. isores amiserit,vel castratus fuerit, et talis pro mahemiato poteritadjudicari.’ Flela, L. 1. c. 40. ‘Et volons que nul mahemenesoit tenus forsque de membre toilet dount home est plusfeble a combatre, sicome, del oyl, on de la mayn, ou delpie, on de la tete debruse, ou de les dentz devant.’Britton, c. 25. For further definitions, see Braclon, L. 3.c. 24 § 3. 4. Finch, L. B. 3. c. 12; Co. L. 126. a b 288. a;3 Bl. 121; 4 Bl 205; Stamf. P C. L. 1. c. 41. I do not findany of these definitions confine the offence to wilful andmalicious perpetrations of it. 22&23 Car. 2. c. 1, calledthe Coventry act, has the words ‘on purpose and of maliceforethought.’ or does the Common law-prescribe the samepunishment for disfiguring, as for maiming.** The punishment was by retaliation. ‘Et come ascun appeleserra de tele felonie atteint et attende jugement, si soitle jugement tiel que il perde autriel membre come il averatoilet al pleintyre. El sy la pleynte soit faite de femmeque avera toilet a home ses membres, en tiei cas perdra lafemmela une meyn par jugement, come le membre dount eleavera trespasse.’ Britton, c 25. Flela, B 1. c. 40; LI.Ælfr. 19. 40.
Whosoever shall counterfeit* 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 counterfeited coin, paper, bills, or notes, knowing them to be counterfeit; or, for the sake of lucre shall diminish,** case, or wash any such coin, shall be condemned to hard labor six years in the public works, and shall forfeit all his lands and goods to the Commonwealth.
* 25E.3. st 5. c. 2; 5 El c. 11; 18 El. c. 1; 8 and 9 W. 3.c. 26; 15. and 16 G 2. c. 28; 7 Ann. q. 25. By the laws ofÆthelstan and Canute, this was punished by cutting off thehand. ‘Gifse mynetereful wurthe sleaman tha hand of, the hethat fil mid worthe and sette iippon tha rnynet smithlhan.’In English characters and words ‘if the minler foul[Criminal] wert, slay the hand off, that he the foul [crime]with wrought, and set upon the mint-smithery.’ LI,iEthelst.14. ‘And selhe ofer this false wyrce, tholige thaera handathe he thaet false mid worhte.’ ‘Et si quis prater hanc,falsam fecerit, perdat manum quacum falsam confecit.’ LI.Cnuti, 8. It had been death by the LI. Æihelredi, sub fine.By those of H. 1. ‘Si quis cum falso deuario inventusfueril—fiat justitia mea, saltern de dextro pugno et detesticulis.’ Anno 1108. ‘Opera prelium vero est audire quamseverus rex fuerit in pravos. Monetarios enim fere omnestotius Angliee fecit ementulari, et manus dextras abscindi,quia monetam furtive corruperant.’ Wilkins ib. et anno 1125.When the Common law became settled, it appears to have beenpunishable by death. ‘Est aliud genus crirninis quod subnomine falsi continetur, et tangit coronam domini regis, etnlfimum indncit supplicium, sicut de illis qui falsamfabricant monetasn, et qui de re non reproba, faciuntreprobam; sicut sunt retonsores deriarinruno’ Bract. L. 3. c3. § 2. Fleta, L. 1. c. 22 § 4 Lord Hale thinks it wasdeemed petty treason at common law. 1 H. P. C. 220, 224. Thebringing in false money with intent to merchandise, and makepayment of it is treason, by 25 E. 3. But the best proof ofthe intention, is the act of passing it, and why not leaveroom for repentance here, as in other cases of feloniesintended? I H P. C. 229.** Clipping, filing, rounding, impairing, scaling,lightening, (the words in the statutes) are included in‘diminishing;’ gilding, in the word ‘casing;’ coloring inthe word ‘washing;’ and falsifying or marking, iscounterfeiting.’
Whosoever committeth Arson,* shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers threefold.**
*43 El. c. 13. confined to four counties. 22 ^ 23 Car. 2. c.7; 9 G. 1. c. 22, 9 G. 3. c. 29.** Arson was a felony at Common law—3 Inst. 66; punished bya fine, Ll. Æthelst. 6. But LI. Cnuti, 61. make it a ‘scetusinexpiable.’ ‘Hus brec and baernet and open thyfth andasbereniorth and hlaford swice after woruld laga isboileds.’ Word for word, ‘House break and burnt, and opentheft, and manifest murdher, and lord-treachery, afterworld’s law is bootless.’ Bracton says, it was punished bydeath. ‘Si quis turbida seditione iricendium feceritnequiter et in felonia, vel ob inimicitias, vel praedandicausa, capital puniatur pcena vel sententia.’ Bract. L. 3.c. 27. He defines it as commissible by burning ‘cedes alienas.’ Ib. Britton, c. 9. ‘Ausi soitenquis de ceux quefelonise-ment en temps de pees eient a litre blees ou autremessons ars, et ceux que ser-rount de ceo alteyniz, soientars issint que eux soient punys par mesme cele chose dountils pecherent.’ Fleia, L. I. c. 37. is a copy of Bracton.The Mirror, c. 1. § 8. says, ‘Ardours sont que ardent cilie,ville, maison home, maison beast, ou auters chatelx, de lourfelonie en temps de pace pour haine ou vengeance.’ Again, c.2. § II., pointing oul the words of the appellor ‘jeo diseque Sebright, &c. entiel meas. on ou hiens mist de feu.’Coke, 3 Inst. 67. says, ‘The ancient authors extended thisfelony further than houses, viz. to stacks of corn, waynesor carts of coal, wood, or other goods.’ He defines it ascommissibie, not only on the inset houses, parcel of themansion-house, but the outset also, as barn, stable, cow-house, sheep-house, dairy-house, mill-house, and the like,parcel of the mansion house.’ But ‘burning of a barn, beingno parcel of a mansion-house, is no felony,’ unless there becorn or hay within it. Ib. The 22 k. 23 Car. 2. and 9 G. 1.are the principal statutes against arson. They extend theoffence beyond the Common law.
If any person shall, within this Commonwealth, 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, he shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers threefold.
* Ann. st. 2. c. 9. 12 Ann. c. 18. 4 G. 1. c. 12. 26 G. 2.c. 19.** 11 h 12 W.3. c.7.
Whosoever committeth Robbery,* shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured.
* Robbery was a felony at Common law. 3 Inst. 68. ‘Scelusinexpiable,’ by the LI. Cnuti. 61. [See before in Arson.] Itwas punished with death. Briit c. 15, ‘De robbours et delarouns et de semblables mesfesours, soitaussiententivernent enquis—et tauntost soient ceux robboursjuges a la morl.’ Fleta says, ‘Si quis conviclus fuerit debonis viri robbatis vel asportatis ad sectam regis judiciumcapitale subibit.’ L. 1. c. 39. See also Bract. L. 3. c. 32§ I.
Whatsoever act, if committed on any mansion-house, would be deemed Burglary,* shall be Burglary, if committed on any other house; and he who is guilty of Burglary, shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured.
* Burglary was felony at the Common law. 3 Inst. 63 It wasnot distinguished by ancient authors, except the Mirror,from simple House-breaking, ib. 65. Burglary and House-breaking were called ‘Hamsockne.’ ‘Diximus etiam de pacisviolatione et de immunitatibus domus, si quis hoc inposterum fecetit ut perdat ornne quod habet, et sit in regisarbitro utrum vitam habeat.’ ‘Eac we quasdon be mundbryceand be ham socnum,sethe hit ofer this do tha:t he dolieenlles thces the age, and sy on Cyninges Jome hwsether belife age: and we quoth of mound-breach, and of home-seekinghe who it after this do, that he dole all that he owe[owns], and is in kings doom whether he life owes [owns].’LI. Eadmundi, c. 6 and see LI. Cnuti. 61. ‘bus btec,’ innotesion Arson, ante. A Burglar was also called a Burgessor.‘Et soit enquis de Burgessours et sunt tenus Burgessourstrestous ceux que felonisement en temps de pees debrusorntesglises ou auter mesons, ou murs ou portes de nos cytes, oude nos Burghes.’ Britt. c. 10. ‘Burglaria est nocturnadiruptio habitaculi alicujus, vel ecclesise, etiam murorum,portarurnve civitatis aut burgi, ad feloniam aliquamperpetrandam. Noclanter dico, recentiores se-cutus; veteresenim hoc non adjungunt.’ Spelm. Gloss, verb. Burglaria. Itwas punished with death. Ib. citn. from the office of aCoroner. It may be committed in the outset houses, as wellas inset, 3 Inst. 65. though not under the same roof orcontiguous, provided they be within the Curtilage or Home-stall. 4 BI. 225. As by the Common law all felonies wereclergiable, the stat. 23 H. 8. c. 1; 5 E. 6. c. 9. and 18El. c. 7. first distinguished tfiem, by taking the clericalprivilege of impunity from the principals, and 3 & 4 W. M.c. 9. from accessories before the fact. No statute defineswhat Burglary is. The 12 Ann. c. 7. decides the doubtwhether, where breaking is subsequent to entry, it isBurglary. Bacon’s Elements had affirmed, and T. H. P. C.554. had denied it. Our bill must distinguish them bydifferent degrees of punishment.
Whatsoever act, if committed in the night time, shall constitute the crime of Burglary, shall, if committed in the day, be deemed House-breaking;* 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.
* At the Common law, the offence of House-breaking was notdistinguished from Burglary, and neither of them from anyother larceny. The statutes at first took away clergy fromBurglary, which made a leading distinction between the twooffences. Later statutes, however, have taken clergy from somany cases of House-breaking, as nearly to bring theoffences together again. These are 23 H. 8. c. 1; 1 E. 6. c.12; 5 k 6 E. 6. c. 9; 3 & 4 W. M. c. 9; 39 El. c. 15; 10&11W. 3. c.23; 12 Ann. c. 7. See Burr. 428; 4 Bl. 240. Thecircumstances, which in these statutes characterize theoffence, seem to have been occasional and unsystematical.The houses on which Burglary may be committed, and thecircumstances which constitute that crime, beingascertained, it will be better to define House-breoking bythe same subjects and circumstances, and let the crimes bedistinguished only by the hour at which they are committed,and the degree of punishment.
Whosoever shall be guilty of Horse-stealing,* shall be condemned to hard labor three years in the public works, and shall make reparation to the person injured.
* The offence of Horse-stealing seems properlydistinguishable from other larcenies, here, where theseanimals generally run at large, the temptation being sogreat and frequent, and the facility of commission soremarkable. See 1 E. 6. c. 12; 23 E. 6. c. 33; 31 El. c. 12.
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 make reparation to the person injured.
* The distinction between grand and petty larceny is veryancient. At first 8d. was the sum which constituted grandlarceny. LI. Ælhelst. c. 1. ‘Ne parcatur ulli furi, quifurtum manutenens captus sit, supra 12 annos nafo, et supra8 denarios.’ Afterwards, in the same king’s reign, it wasraised to 12d. ‘Non parcaturalicui furi ultra 12 denarios,et ultra 12 annos nato—ut occide-mus ilium et capiamus omnequod possidet, et inprimis sumamus rei furto ablatse pretiumab hserede, ac dividatur postea reliquum in duas partes, unapars uxori, si munda, et facinoris conscia non sit; etresiduum in duo, dimi-dium capiat rex, dimidium societas.’LI. Æthelst. Wilkins, p. 65. VOL. I. 17** LI. Inse, c. 7. ‘Si quis furetur ita ut uxor ejus etinfans ipsius nesciani, solvat 60. solidos pcenae loco. Siautem furetur testantibus omuibus haere-dibus suis, abeantomnes in servilutem.’ Ina was King of the West Saxons, andbegan to reign A. C. 688. After the union of the Heptarchy,i. e. temp. Æthelst. inter 924 and 940, we find itpunishable with death as above. So it was inter 1017 and1035, i. e. temp. Cnuti. LI. Cnuti 61. cited in notes onArson. In the time of William the Conqueror, it seems lohave been made punishable by fine only. LI. Gul. Cohq. apudWilk. p. 218. 220. This commutation, however, was taken awayby LI. H. 1. anno 1108. ‘Si quis in furto vel latro-ciniodeprehensus fuisset, suspenderetur: sublata wirgildorum, idest, pecu-niarse redemptions lege.’ Larceny is the felonioustaking and carrying away of the personal goods of another.1. As to the taking, the 3 & 4 VV. M. c. 9. § 5, is notadditional to the Common law, but declaratory of it; becausewhere only the care or use, and not the possession, ofthings is delivered, to take them was larceny at the Commonlaw. The 33 H. 6. c. 1 and 21 11. 8. c. 7., indeed., haveadded to the Common law by making it larceny in a servant toconvert things of his master’s. But quære, if they should beimitated more than as to other breaches of trust in general.2. As to the subject of larceny, 4 G. 2. c.32; 6 G. 3. c. 3648; 43 El. c. 7; 15 Car. 2. c. 2; 23 G. 2 c. 26; 31 G. 2. c.35; 9 G. 3. c. 41; 25 G. 2. c. 10. have extended larceny tothings of various sorts, either real, or fixed to therealty. But the enumeration is unsystematical, and in thiscountry, where the produce of the earth is so spontaneous asto have rendered things of this kind scarcely a breach ofcivility or good manners in the eyes of the people, quære,if it would not too much enlarge the field of Criminal law?The same may be questioned of 9 G. J. c. 22; 13 Car. 2. c.10; 10 G. 2. c. 32; 5 G. 3. c. 14; 22 h 23 Car. 2. c. 25; 37E. 3. c. 19. making it felony to steal animals fertenatures.
Petty Larceny shall be, where the goods stolen are of less value than five dollars; and 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, orpromissory notes for the payment of money or tobacco, lottery tickets,paper bills issued in the nature of money, or of certificates of loan onthe credit of this Commonwealth, or of all or any of the United Statesof America, or Inspectors’ notes for tobacco, shall be punished in thesame manner as robbery,or larceny of the money or tobacco due on orrepresented by such papers.* 2 G. 2. c. 25 §3; 7 G 3. c. 50.
Buyers* and receivers of goods 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.
* 3 &. 4 W. & M. c. 9. § 4; 5 Ann. c. 31. § 5; 4 G. 1. c.11. § 1.
Prison breakers,* also, shall be deemed accessaries after the fact, to traitors or felons whom they enlarge from prison.**
* 1 E. 2.** Breach of prison at the Common law was capital, withoutregard to the crime for which the party was committed. ‘Cumpro criminis qualitate in carcerem recepti fuerint,conspiraverint (ut ruptis vinculis aut fracto carcere)evadant, atnplius (quam causa pro qua recepti sunt exposuit)puniendi sunt, videlicet ultimo supplicio, quamvis ex eocrimine innocentes inveniantur, propter quod inducti sunt incarcerem 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, butnot in the prisoner himself. S. C. Fitz. Abr. Co-ron. 48.They are principal felons, not accessaries, ib. Whether itwas felony in the prisoner at Common law, is doubted. Stam.P. C. 30. b. The Mirror c. 5. § 1. says, ‘Abusion est atener escape de prisoner, ou de bruserie del gaole pur pechemortal 1, car eel usage nest garrant per nul ley, ne in nulpart est use forsque in cest realme, et en France, ems[mais] est leu garrantie de ceo faire per la ley de nature’2 Inst. 589. The stat. 1 E. 2, ‘de fragentibus priso-nam,’‘restrained the judgment of life and limb for prison-breaking, to cases where the offence of the prisonerrequired such judgment.’It is not only vain but wicked, in a legislator to framelaws in opposition to the laws of nature, and to arm themwith the terrors of death. This is truly creating crimes inorder to punish them. The law of nature impels every one toescape from confinement; it should not, therefore, besubjected to punishment. Let the legislator restrain hiscriminal by walls, not by parchment. As to strangersbreaking prison to enlarge an offender, they should, and maybe fairly considered as accessaries after the fact. Thisbill saying nothing of the prisoner releasing himself bybreach of jail, he will have the benefit of the firstsection of the bill, which repeals the judgment of life anddeath at the Common law.
All attempts to delude the people, or to abuse their understanding 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.*
* ‘Gifwiecan owwe wigleras mansworan, owwe morthwyrhtan owwefule afylede eebere horcwenan ahwhar on lande wurthanagytene, thonne fyrsie man of earde, and claensie lha.theode, owwe on earde forfare hi mid ealle, buton higeswican and the deoper gebetan:’ ‘if witches, or weirds,man-swearers, or murther-wroughters, or foul, defiled, openwhore-queens, ay—where in the land were gotten, then forcethem off earth, and cleanse the nation, or in earth forth-fare them withal, buton they beseech, and deeply better.’LI. Ed. et Guthr. c. 11. ‘Saga; mulieres barbarafactitantes sacrificia, aut pestiferi, si cui mortemintulerint, neque id inficiari poterint, capitis pcenaesto.’ LI. Aethelst. c. 6. apud Lambard. LI. Aelfr. 30. LI.Cnuti. c. 4. ‘Mesmo eel jugement (d’etrears) eyentsorcers, et sorceresses,’ &c. ut supra. Fleta tit et ubisupra. 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’simprisonment 3 E. 6 c 15. 5 El. c. 15. punish fond,fantastical, and false prophecies, by fine and imprisonment.
If the principal offenders be fled,* or secreted from justice, in any case not touching life or member, the accessaries may, notwithstanding, be prosecuted as if their principal were convicted.**
* 1 Ann. c. 9. § 2.**As every treason includes within it a misprision oftreason, so every felony includes a misprision, ormisdemeanor. 1 Hale P. C. 652. 75S. ‘Licet fuerit felonia,tamen in eo continetur misprisio.’ 2 R. 3.10. Both principaland accessary, therefore, may be proceeded against in anycase, either for felony, or misprision, at the Common law.Capital cases not being mentioned here, accessaries to themwill of course be triable for misprisions, if the offenderflies.
If any offender stand mute of obstinacy,* or challenge preremp-torily 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,**
* 3E. I.e. 12.** Whether the judgment of penance lay at Common law. See 2Inst. 178.2. H. P. C. 321. 4 Bl. 322. It was given onstanding mute: but on challenging more than the legalnumber, whether that sentence, or sentence of death is to begiven, seems doubtful. 2 H. P. C. 316. Quære, whether itwould not be better to consider the supernumerary challengeas merely void, and to proceed in the trial. Quære too, incase of silence.
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.*
* ‘Cum Clericus sic de crimine convictus degradetur, nonsequitur aliapoe-na pro uno delicto, vel pluribus antedegradationem perpetratis. Satis enim sufficit ei pro pcenadegradatio, quse est magna capitis diminutio, nisi forteconvictus fuerit de apostatia, quia hinc primo degradetur,et postea per manum laicalem comburetur, secundum quodaccidit in concilio Oxoni celebrato a bonas memoriae S.Cantuaren. Archiepiscopo de quodam diacono, qui seapos-tatavit pro quadam Judaea; qui cum esset per episcopumdegradatus, statim fuit igni traditus per manum laicalem.’Bract. L. 3. c. 9. § 2. ‘Et mesme eel jugement (i. e. quiils soient ars) eye n’t sorcers et sorceresses, et sodomiteset mescreauntz apertement atteyntz.’ Britt. c. 9.‘Christiani autem Apostatae, sortilegii, et hujusmodidetractari debent et comburi.’ Fleta, L. 1. c. 37. § 2. see3 Inst. 39; 12 Rep. 92; 1 H. P. C. 393. The extent of theclerical privilege at the Common law, 1. As to the crimes,seems very obscure and uncertain. It extended to no casewhere the judgment was not of life or limb. Note in 2. H. P.C. 326. This, therefore, excluded it in trespass, pettylarceny, or killingse defendendo. In high treason againstthe person of the King, it seems not to have been allowed.Note 1 H. P. C. 185. Treasons, therefore, not against theKing’s person immediately, petty treasons and felonies, seemto have been the cases where it was allowed; and even ofthose, not forinsidiatio viarum, depopulatio agrorum, orcombustio domorum. The statute de Clero, 25 E. 3. st. 3. c.4. settled the law on this head. 2. As to the persons, itextended to all clerks, always, and toties quoiies. 2 H. P.C. 374. To nuns also. Fitz. Abr. Coron. 461. 22 E. 3. Theclerical habit and tonsure were considered as evidence ofthe person being clerical. 26 Assiz. 19 & 20 E. 2. Fitz.Coron. 233. By the 9 E. 4. 28. b. 34 H. 6. 49. a. b. simplereading became the evidence. This extended impunity to agreat number of laymen, and toties quoties. The stat. 4 H.7. c. 13. directed that real clerks should upon a secondarraignment, produce their orders, and all others to beburnt in the hand with M. or T. on the first allowance ofclergy, and not to be admitted to it a second time. Aheretic, Jew, or Turk, (as being incapable of orders) couldnot have clergy. H Co. Rep. 29. b. But a Greek, or otheralien, reading in a book of his own country, might. Bro.Clergie. 20. So a blind man, if he could speak Latin. Ib.21. qu, 11. Rep. 29. b. The orders entitling the party werebishops, priests, deacons, and sub-deacons, the inferiorbeing reckoned Clerici in minoribus. 2 H. P. C. 373. Quære,however, if this distinction is not founded on the stat. 23.H. 8. c. 1; 25. H. 8. c. 32. By merely dropping all thestatutes, it should seem that none but clerks would beentitled to this privilege, and that they would, totiesquoties.
No attainder shall work corruption of blood in any case.
In all cases of forfeiture, the widow’s dower shall be saved to her, during her title thereto; after which it shall be disposed of as if no such saving had been.
The aid of Counsel,* and examination of their witnesses on oath, shall be allowed to defendants in criminal prosecutions.