* 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 is

made murder. In justification of this, it is said, that

shame is a feeling which operates so strongly on the mind,

as frequently to induce the mother of such a child to murder

it, in order to conceal her disgrace. The act of

concealment, therefore, proves she was influenced by shame,

and that influence produces a presumption that she murdered

the 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 many

children die before, or soon after birth, that to presume

all those murdered who are found dead, is a presumption

which will lead us oftener wrong than right, and

consequently would shed more blood than it would save. 2. If

the child were born dead, the mother would naturally choose

rather to conceal it, in hopes of still keeping a good

character in the neighborhood. So that the act of

concealment is far from proving the guilt of murder on the

mother. 3. If shame be a powerful affection of the mind, is

not parental love also? Is it not the strongest affection

known? Is it not greater than even that of self-

preservation? While we draw presumptions from shame, one

affection of the mind, against the life of the prisoner,

should we not give some weight to presumptions from parental

love, an affection at least as strong in favor of life? If

concealment of the fact is a presumptive evidence of murder,

so strong as to overbalance all other evidence that may

possibly be produced to take away the presumption, why not

trust the force of this incontestable presumption to the

jury, who are, in a regular course, to hear presumptive, as

well as positive testimony? If the presumption, arising from

the act of concealment, may be destroyed by proof positive

or circumstantial to the contrary, why should the

legislature preclude that contrary proof? Objection. The

crime is difficult to prove, being usually committed in

secret. Answer. But circumstantial proof will do; for

example, marks of violence, the behavior, countenance, &c.

of the prisoner, &c. And if conclusive proof be difficult to

be obtained, shall we therefore fasten irremovably upon

equivocal proof? Can we change the nature of what is

contestable, and make it incontestable? Can we make that

conclusive which God and nature have made inconclusive?

Solon made no law against, parricide, supposing it

impossible any one could be guilty of it; and the Persians,

from the same opinion, adjudged all who killed their reputed

parents to be bastards: and although parental, be yet

stronger than filial affection, we admit saticide proved on

the most equivocal testimony, whilst they rejected all proof

of an act, certainly not more repugnant to nature, as of a

thing 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 not

be 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 Common

law, one witness in treason was sufficient. Foster, 233.

Plowd. 8. a. Mirror, c. 3. § 34. Waterhouse on Fortesc de

Laud. 252. Carth. 144 per Holt. But Lord Coke, contra, 3

Inst 26. The stat. 1 E. 6. c 12. &5E.6. c. 11. first

required two witnesses in treason. The clause against high

treason supra, does the same as to high treason; but it

seems if 1st and 5th E. 6. are dropped, petty treason will

be tried and proved, as at Common law, by one witness. But

quære, Lord Coke being contra, whose opinion it is ever

dangerous to neglect.

** These words are intended to take away the peremptory

challenge of thirty-five jurors. The same words being used 1

& 2 Ph. k. M. c. 10. are deemed to have restored the

peremptory challenge in high treason; and consequently are

sufficient to take it away. Foster, 237.

*** Petty treason is considered in law only as an aggravated

murder. Foster, 107,323. A pardon of all murders, pardons

petty treason. 1 Hale P. C. 378. See 2 H. P. C. 340, 342. It

is also included in the word ‘felony,’ so that a pardon of

all 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, in

order that it may not for ever be undergoing change: and, to

carry into effect the minuter parts of it; frame a bill ‘for

the employment and government of felons, or male-factors,

condemned to labor for the Commonwealth,’ which may serve as

an Appendix to this, and in which all the particulars

requisite may be directed: and as experience will, from time

to time, be pointing out amendments, these may be made

without touching this fundamental act. See More’s Utopia pa.

50, for some good hints. Fugitives might, in such a bill, be

obliged to work two days for every one they absent

themselves.

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, is

homicide by misadventure. Shooting at a pullet, without any

design to take it away, is manslaughter; and with a design

to take it away, is murder. 6 Sta. tr. 222. To shoot at the

poultry of another, and thereby set fire to his house, is

arson, 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 been

already provided. The first are held to be totally without

guilt, or rather commendable. The second are, in some cases,

not quite unblamable. These should subject the party to

marks of contrition; viz. the killing of a man in defence of

property; so also in defence of one’s person, which is a

species of excusable homicide; because, although cases may

happen where these also are commendable, yet most frequently

they are done on too slight appearance of danger; as in

return for a blow, kick, fillip, &c; or on a person’s

getting into a house, not _anirno furandi_, but perhaps

_veneris causa_, &c. Bracton says, ‘_Si quis furem noctupnum

occiderit, ita demum impune foret, si parcere ei sine

periculo suo non potuit; si autem potuit, aliter erit.’

‘Item erit si quis hamsokne qua; dicitur invasio domus

contra pacem domini regis in domo sua se defenderit, et

invasor occisus fuerit; impersecutus et inultus ramanebit,

si ille quem invasit aliter se defendere non potuit; dicitur

enim quod non est dignus habere pacem qui non vult observare

earn.’ L.3. c.23. § 3. ‘Qui latronetn Occident, non tenetur,

nocturnum vel diurnnm, si aliter periculum evadere non

possit; tenetur ta-men, si possit. Item non tenetur si per

inforlunium, et non anitno et voluntate occidendi, nee

dolus, nec culpa ejus inveniatur_.’ L.3. c.36. § 1. The stat.

24 H. 8. c. 5 is therefore merely declaratory of the Common

law. See on the general subject, Puffend. 2. 5. § 10, 11,

12, 16, 17. Excusable homicides are by misadventure, or in

self-defence. It is the opinion of some lawyers, that the

Common law punished these with death, and that the statute

of Marlbridge, c. 26. and Gloucester, c. 9. first took away

this 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 have

been capital. 1 H. P. C. 425; 1 Hawk. 75; Foster, 282; 4 Bl.

188. It seems doubtful also, whether at Common law, the

party forfeited all his chattels in this case, or only paid

a weregild. Foster, _ubi supra_, doubts, and thinks it of no

consequence, as the statute of Gloucester entitles the party

to Royal grace, which goes as well to forfeiture as life. To

me, there seems no reason for calling these excusable

homicides, and the killing a man in defence of property, a

justifiable homicide. The latter is less guiltless than

misadventure or self defence.

Suicide is by law punishable by forfeiture of chattels. This

bill exempts it from forfeiture. The suicide injures the

state less than he who leaves it with his effects. If the

latter then be not punished, the former should not. As to

the example, we need not fear its influence. Men are too

much attached to life, to exhibit frequent instances of

depriving themselves of it. At any rate, the quasi-

punishment of confiscation will not prevent it. For if one

be found who can calmly determine to renounce life, who is

so weary of his existence here, as rather to make experiment

of what is beyond the grave, can we suppose him, in such a

state of mind, susceptible of influence from the losses to

his family by confiscation? That men in general, too,

disapprove of this severity, is apparent from the constant

practice of juries finding the suicide in a state of

insanity; because they have no other way of saving the

forfeiture. 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 having

substance, 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, without

this statute: and as to the abduction of the woman, quære if

not better to leave that, and also kidnapping, 4 Bl. 219. to

the Common law remedies, viz. fine, imprisonment, and

pillory, Raym. 474; 2 Show. 221; Skin. 47; Comb. 10. the

writs of _Homine replegiando_, Capias in Withernam, Habeas

corpus, and the action of trespass? Rape was felony at the

Common law. 3 Inst. 60 but see 2 Inst. 181. Further--for its

definition see 2 Inst. 180. Bracton L.3. 28. § 1. says, the

punishment of rape is ‘_amissio membrorum, ut sit membrumpro

membra, quia virgo, cum corrumpitur, membrum amittit, et

ideo corruptor puniatur in eo in quo deliquit; oculos igitur

amittat propter aspectum decoris quo virginem concupivit;

amittat et testiculos qui calorem stupri induxerunt. Olim

quidem corruptores virginitatis et castitatis suspendebantur

et eorum fautores, &c. Modernis tamen temporibus aliter

observatur_,’ &.c. And Fleta, ‘_Solet justiciarius pro

quolibet mahemio ad amissionem testiculorum vel oculorum

convictum coudemnare, sed non sine errore, eo quod id

judicium nisi in corruptione virginum lantum competebat; nam

pro virginitatis corruptione solebant abscidi et merito

judicari, ut sic pro membro quod abstulit, membrum per quod

deliquit amitteret, viz. lesticulos, qui calorem stupri

induxerunt_,’ &c. Fleta. L. 1. c. 40. § 4. ‘Gif theow man

theowne to nydhffimed genyde, gabete mid his eowende: Si

servus servam ad sfuprum coegerit, compenset hoc virga sua

virili. Si quis pnellam,’ &c. Ll.Æliridi. 25. ‘Hi purgst

femme per forze forfait ad les membres.’ LI. Gul. Conq. 19.

** 1 Jac. 1. c. 11. Polygamy was not penal till the statute

of 1 Jac. The law contented itself with the nullity of the

act. 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 and

Bestiality are the species. 12 Co. 37. says, In Dyer, 304. a

man was indicted, and found guilty of a rape on a girl of

seven years old. The court doubted of the rape of so tender

a girl; but if she had been nine years old, it would have

been otherwise.’ 14 Eliz. Therefore the statute 18 Eliz. c.

6, says, ‘For plain declaration of law, be it enacted, that

if any person shall unlawfully and carnally know and abuse

any woman child, under the age of ten years, &c. he shall

suffer as a felon, without allowance of clergy.’ Lord Hale,

however, 1 P. C. 630. thinks it rape independent of that

statute, to know carnally a girl under twelve, the age of

consent. Yet, 4 Bl. 212. seems to neglect this opinion; and

as it was founded on the words of 3 E. 1. c. 13. and this is

with us omitted, the offence of carnally knowing a girl

under twelve, or ten years of age, will not be distinguished

from that of any other. Co. 37. says ‘note that Sodomy is

with mankind.’ But Finch’s L. B. 3. c. 24. ‘Sodomitry is a

carnal copulation against nature, to wit, of man or woman in

the same sex, or of either of them with beasts.’ 12 Co 36.

says, ‘It appears by the ancient authorities of the law

that this was felony.’ Yet the 25 H. 8. declares it felony,

as if supposed not to be so. Britton, c, 9. says, that

Sodomites are to be burnt. F. N. B. 269. b. Fleta, L 1. c.

37. says, ‘Pecorantes et Sodomise in terra, vivi

confodiantur.’ The Mirror makes it treason. Bestiality can

never make any progress; it cannot therefore be injurious to

society in any great degree, which is the true measure of

criminality _in foro cirili_, and will ever be properly and

severely punished, by universal derision. It may, therefore,

be omitted. It was anciently punished with death, as it has

been latterly. LI Ælfrid. 31. and 25 H. 8. c. 6. see

Beccaria, § 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 Common

law. Britton, c 95. Mehemiurn autem dici poterit, ubi

aliquis in aliqua. parte sui corporis la sionern acceperit,

per quam affectus sit inutilis ad pugnandum: ut sirnanus

ampuletur, vel pes, octilus privetur, vel scerda de osse

capitis lavetnr, vel si quis dentes praer. isores amiserit,

vel castratus fuerit, et talis pro mahemiato poterit

adjudicari.’ Flela, L. 1. c. 40. ‘Et volons que nul maheme

nesoit tenus forsque de membre toilet dount home est plus

feble a combatre, sicome, del oyl, on de la mayn, ou del

pie, 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 find

any of these definitions confine the offence to wilful and

malicious perpetrations of it. 22&23 Car. 2. c. 1, called

the Coventry act, has the words ‘on purpose and of malice

forethought.’ or does the Common law-prescribe the same

punishment for disfiguring, as for maiming.

** The punishment was by retaliation. ‘Et come ascun appele

serra de tele felonie atteint et attende jugement, si soit

le jugement tiel que il perde autriel membre come il avera

toilet al pleintyre. El sy la pleynte soit faite de femme

que avera toilet a home ses membres, en tiei cas perdra la

femmela une meyn par jugement, come le membre dount ele

avera 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 of

Æthelstan and Canute, this was punished by cutting off the

hand. ‘Gifse mynetereful wurthe sleaman tha hand of, the he

that 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 handa

the 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 inventus

fueril--fiat justitia mea, saltern de dextro pugno et de

testiculis.’ Anno 1108. ‘Opera prelium vero est audire quam

severus rex fuerit in pravos. Monetarios enim fere omnes

totius 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 been

punishable by death. ‘Est aliud genus crirninis quod sub

nomine falsi continetur, et tangit coronam domini regis, et

nlfimum indncit supplicium, sicut de illis qui falsam

fabricant monetasn, et qui de re non reproba, faciunt

reprobam; sicut sunt retonsores deriarinruno’ Bract. L. 3. c

3. § 2. Fleta, L. 1. c. 22 § 4 Lord Hale thinks it was

deemed petty treason at common law. 1 H. P. C. 220, 224. The

bringing in false money with intent to merchandise, and make

payment of it is treason, by 25 E. 3. But the best proof of

the intention, is the act of passing it, and why not leave

room for repentance here, as in other cases of felonies

intended? 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 in

the word ‘washing;’ and falsifying or marking, is

counterfeiting.’

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 by

a fine, Ll. Æthelst. 6. But LI. Cnuti, 61. make it a ‘scetus

inexpiable.’ ‘Hus brec and baernet and open thyfth and

asbereniorth and hlaford swice after woruld laga is

boileds.’ Word for word, ‘House break and burnt, and open

theft, and manifest murdher, and lord-treachery, after

world’s law is bootless.’ Bracton says, it was punished by

death. ‘Si quis turbida seditione iricendium fecerit

nequiter et in felonia, vel ob inimicitias, vel praedandi

causa, capital puniatur pcena vel sententia.’ Bract. L. 3.

c. 27. He defines it as commissible by burning ‘cedes alien

as.’ Ib. Britton, c. 9. ‘Ausi soitenquis de ceux que

felonise-ment en temps de pees eient a litre blees ou autre

messons ars, et ceux que ser-rount de ceo alteyniz, soient

ars issint que eux soient punys par mesme cele chose dount

ils 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 lour

felonie en temps de pace pour haine ou vengeance.’ Again, c.

2. § II., pointing oul the words of the appellor ‘jeo dise

que Sebright, &c. entiel meas. on ou hiens mist de feu.’

Coke, 3 Inst. 67. says, ‘The ancient authors extended this

felony further than houses, viz. to stacks of corn, waynes

or carts of coal, wood, or other goods.’ He defines it as

commissibie, not only on the inset houses, parcel of the

mansion-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, being

no parcel of a mansion-house, is no felony,’ unless there be

corn or hay within it. Ib. The 22 k. 23 Car. 2. and 9 G. 1.

are the principal statutes against arson. They extend the

offence 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. ‘Scelus

inexpiable,’ by the LI. Cnuti. 61. [See before in Arson.] It

was punished with death. Briit c. 15, ‘De robbours et de

larouns et de semblables mesfesours, soitaussi

ententivernent enquis--et tauntost soient ceux robbours

juges a la morl.’ Fleta says, ‘Si quis conviclus fuerit de

bonis viri robbatis vel asportatis ad sectam regis judicium

capitale 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 was

not distinguished by ancient authors, except the Mirror,

from simple House-breaking, ib. 65. Burglary and House-

breaking were called ‘Hamsockne.’ ‘Diximus etiam de pacis

violatione et de immunitatibus domus, si quis hoc in

posterum fecetit ut perdat ornne quod habet, et sit in regis

arbitro utrum vitam habeat.’ ‘Eac we quasdon be mundbryce

and be ham socnum,sethe hit ofer this do tha:t he dolie

enlles thces the age, and sy on Cyninges Jome hwsether be

life age: and we quoth of mound-breach, and of home-seeking

he 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,’ in

notesion Arson, ante. A Burglar was also called a Burgessor.

‘Et soit enquis de Burgessours et sunt tenus Burgessours

trestous ceux que felonisement en temps de pees debrusornt

esglises ou auter mesons, ou murs ou portes de nos cytes, ou

de nos Burghes.’ Britt. c. 10. ‘Burglaria est nocturna

diruptio habitaculi alicujus, vel ecclesise, etiam murorum,

portarurnve civitatis aut burgi, ad feloniam aliquam

perpetrandam. Noclanter dico, recentiores se-cutus; veteres

enim hoc non adjungunt.’ Spelm. Gloss, verb. Burglaria. It

was punished with death. Ib. citn. from the office of a

Coroner. It may be committed in the outset houses, as well

as inset, 3 Inst. 65. though not under the same roof or

contiguous, provided they be within the Curtilage or Home-

stall. 4 BI. 225. As by the Common law all felonies were

clergiable, the stat. 23 H. 8. c. 1; 5 E. 6. c. 9. and 18

El. c. 7. first distinguished tfiem, by taking the clerical

privilege of impunity from the principals, and 3 & 4 W. M.

c. 9. from accessories before the fact. No statute defines

what Burglary is. The 12 Ann. c. 7. decides the doubt

whether, where breaking is subsequent to entry, it is

Burglary. Bacon’s Elements had affirmed, and T. H. P. C.

554. had denied it. Our bill must distinguish them by

different 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.

Memoir, Correspondence, and Miscellanies, From the Papers of Thomas Jefferson, Volume 1 · 第 14 / 47 段