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.