* This takes away the punishment of cutting off the hand of a person striking another, or drawing his sword in one of the Superior courts of justice. Stamf. P.C. 38. 33.H.8 c.12. In an earlier stage of the Common law it was death. Gif hwa ȝefeohte on Cyninȝes huse, sy he scyldiȝ ealles his yrfes, & sy on Cyninȝes dome hwæþer he lif aȝe ðe naȝe: si quis in regis domo pugnet, perdat omnem suam haereditatem, et in regis sit arbitrio, possideat vitam an non possideat. Ll.Inae.6. Gif hwa on Cyninȝes healle ȝefeohte, oþþe his wæpne ȝebrede, & hine mon ȝefo, sy þæt on Cyninȝes dome swa deaþ, swa lif, swa he him forȝyfan wille: si quis in aula regia pugnet, vel arma sua extrahat et capiatur, sit in regis arbitrio tam mors quam vita, sicut ei condonare voluerit. Ll.Alfr.7. Gif hwa on cyninȝes hirede ȝefeohte, ðoliȝe ðæs lifes, buton se cyninȝ him ȝearian wille: si quis in regia dimicat, perdat vitam, nisi rex hoc illi condonare velit. Ll.Cnuti.56. 4.Blackst.125.

† Tho’ the crime of an accomplice in treason is not here described, yet Ld. Coke says the partaking and maintaining a treason herein described makes him a principal in that treason; it being a rule that in treason all are principals. 3.Inst. 138. 2.Inst.590. 1.H.6.5.

‡ These words in the Eng. statute narrow it’s operation. A man adhering to the enemies of the commonwealth, in a foreign country, would certainly not be guilty of treason with us, if these words be retained. The convictions of treason of that kind in England have been under that branch of the statute which makes the compassing the king’s death treason. Foster.196.197. But as we omit that branch, we must by other means reach this flagrant case.

¶ The statute 25.E.3. directs all other cases of treasons to await the opinion of parliament. This has the effect of negative words excluding all other treasons. As we drop that part of the statute we must, by negative words prevent an inundation of Common law treasons. I strike out the word ‘it’ therefore, and insert ‘the said cases and no others.’ Qu. how far those negative words may affect the case of accomplices abovementioned? Tho’ if their case was within the statute so as that it needed not await the opinion of parliament, it should seem to be also within our act, so as not to be ousted by the negative words.

§ This implies ‘by the neck.’ See 2. Hawk.444. notes n.o.

* By the statute 21.Jac.1.c.27. and act. assembly 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 murther 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 murthered the child. The effect of this law then is to make what in it’s 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 chuse 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 murther, so strong as to overbalance all other evidence that may possibly be produced to take way 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? Obj. the crime is difficult to prove, being usually committed in secret. Answ. 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 altho’ 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, unprovable. See Beccaria §.31.

† Qu. if the estates of both parties in a duel should not be forfieted? The deceased is equally guilty with a suicide.

‡ Qu. 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.1[44] per Holt. But Ld. Coke contra 3.inst.26. The statute 1.E.6.c.[12.] and 5.E.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 qu. Ld. Coke being contra, whose opinion it is ever dangerous to neglect.

¶ These words are intended to take away the peremptory challenge of 35. jurors. The same words being used 1.2. Ph.&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 murde[rs] 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 pardo[n] of all felonies pardons petty treason. See sheet F.3.b.

* Manslaughter is punishable at law by burning in the hand, and forfieture 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 malefactors 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. some good hints. Fugitives might, in such a bill, be obliged to work two days for every one they absent themselves.

‡ The shooting at a wild fowl, and killing a man is homicide by misadventure. Shooting at a pullet,9 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.

¶ Beccaria.§.32. suicide. Homicides are 1. Justifiable. 2. Excusable. 3. Felonious. For the last, punishments have been already provided. The 1st. are held to be totally without guilt, or rather commendable. The 2d. is in some cases not quite unblamable. These should subject the party to marks of contrition. viz. the killing a man in defence of property; so also in defence of one’s person, which is a species of excusable homicide; because altho’ 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, fillup &c. or on a person’s getting into a house, not animo furandi, but perhaps Veneris causâ &c. Bracton says ‘si quis furem nocturnum occiderit, ita demum impune foret, si parcere ei sine periculo suo non poterit, si autem potuit, aliter erit.’ ‘Item erit si quis hamsokne quae dicitur invasio domus, contra pacem domini regis in domo sua se defenderit, et invasor occisus fuerit; impersecutus et inultus remanebit, si ille quem invasit aliter se defendere non potuit; dicitur enim quod non est dignus habere pacem qui non vult observare eam.’ L.3.c.23.§.3. ‘Qui latronem occiderit, non tenetur, nocturnum vel diurnum, si aliter periculum evadere non passit; tenetur tamen si possit. Item non tenetur si per infortunium, et non animo et voluntate occidendi, nec dolus, nec culpa ejus inveniatur.’ L.3.c. 36.§.1. The statute 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 Glocester 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 Glocester 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 it’s 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.

§ 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, qu. 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 it’s definition see 2.Inst.180. Bracton L.3.c.28.§.1. says the punishment of rape is ‘amissio membrorum, ut sit membrum pro membro, 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 veloculorum convictum condemnare, sed non sine errore, eo quod id judicium nisi in corruptione virginum tantum competebat; nam pro virginitatis corruptione solebant abscidi et meritò judicari, ut sic pro membro quod abstulit, membrum per quod deliquit amitteret, viz. testiculos, qui calorem stupri induxerunt’ &c. Fleta.L.1.c. 40.§.4. ‘Gif ðeow man ðeowne to nydhæmed zenyde, zebete mid his eowende’: si servus servam ad stuprum coegerit, compenset hoc virga sua virili. Si quis puellam &c.’ Ll.Aelfridi.25. ‘Hi purgist femme per forze forfait ad les membres.’ Ll.Gul.conq.19. In Dyer 304. a man was indicted and found guilty of 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.El.c.6. says ‘for plain declaration of law be it enacted that if any person shall unlawfully and carnally know and abuse any womanchild under the age of 10. years &c. he shall suffer as a felon without allowance of clergy.’ Ld. Hale however 1.P.C.630. thinks it rape independant of that statute to know carnally a girl under 12. 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 12. or 10. years of age will not be distinguished from that of any other.

* Polygamy was not penal till the statute 1.Jac. The law contented itself with the nullity of the act. 4.Bl.163. 3.Inst.88.

† 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 ‘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 antient 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 Sodomitae 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 civili, and will ever be properly and severely punished by universal derision. It may therefore be omitted. It was antiently punished with death as it has been latterly. Ll.Aelfrid.31. and 25H.8.c.6. See Beccaria §.31. Montesq.

¶ Maiming was felony at the Common law. Britton.c.25. ‘mahemium autem dici poterit, ubi aliquis in aliquâ parte sui corporis læsionem acceperit, perquam affectus sit inutilis ad pugnandum: ut si manus amputetur, vel pas, oculus privatur, vel scerda de osse capitis lavetur, vel si quis dentes praecisores amiserit, vel castratus fuerit, et talis pro mahemiato poterit adjudicari.’ Fleta.L.1.c.40. ‘et volens que nul maheme ne soit tenus forsque de membre tollet dount home est plus feble à combatre, sicome del oyl, ou de la mayn, ou del pie, ou de la tete debruse, ou de les dentz devant.’ Britton c.25. For further definitions see Bracton 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 definitions of it. 22.23.Car. 2.c.1. called the Coventry act has the words ‘on purpose and of malice forethought.’ Nor 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 autiel membre come il avera tollet al pleintyfe. Et si la pleynte soit faite de femme que avera toilet a home ses membres, en tiel cas perdra la femme la une meyn par jugement, come le membre dount ele avera trespasse.’ Britton.c.25. Fleta.B.1.c.40. Ll.Aelfr.19.40.

* By the laws of Aethelstan and Canute this was punished by cutting off the hand. ‘ȝif se mynetere ful wurþe, slea man þa hand of, ðe he þaet ful mid worhte, & sette uppon ða mynet smiþþan’: in English characters and words ‘if the Minter foul [criminal]15 wert, slay the hand off, that he the foul [crime]15 with wrought, and set upon the mint-smithery.’ Ll. Aethelst.14. ‘& se ðe ofer ðis false wyrce, ðoliȝe ðæra handa ðe he þæt false mid worhte.’ ‘Et si quis praeter hanc, falsam fecerit, perdat manum quacum falsam confecit.’ Ll.Cnuti.8. It had been death by the Ll.Aethelredi sub fine. By those of H.1. ‘si quis cum falso denario inventus fuerit—fiat justitia mea, saltem de dextro pugno et de testiculis.’ Anno 1108. Operae pretium vero est audire quam severus rex fuerit in pravos. Monetarios enim fere omnes totius Angliae 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 criminis quod sub nomine falsi continetur, et tangit coronam domini regis, et ultimum inducit supplicium, sicut de illis qui falsam fabricant monetam, et qui de re non reproba, faciunt reprobam; sicut sunt retonsores denariorum. Bract.L.3.c.3.§.2. Fleta.L.1.c.22.§.4. Ld. 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 paiment 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? 1.H.P.C.229.

† Clipping, filing, rounding, impairing, scaling, lightening, (the words in the statutes) are included in ‘diminishing’: gilding, in the word ‘casing’; colouring in the word ‘washing,’ and falsifying, or marking is ‘counterfieting.’

‡ Arson was a felony at Common law. 3.inst.66. Punished by a fine Ll.Aethelst. 6. But Ll.Cnuti.61. make it a ‘scelus inexpiabile.’ ‘hus brec & bærnet, & open ðyfþ, & æberemorþ, & hlafordswice, æfter woruld laȝa is botleas’: word for word ‘house break and burnt, and open theft, and manifest murther, and lord-treachery, after world’s law is bootless.’ Bracton says it was punished by death. ‘Si quis turbida seditione incendium fecerit nequiter et in felonia, vel ob inimicitias, vel praedandi causa, capitali puniatur poena vel sententia.’ Bract.L.3.c.27. He defines it as commissible by burning ‘aedes alienas.’ Ib. Britton c.9. ‘Ausi soit enquis de ceux que felonisement en temps de pees eient autre blees ou autre mesons ars, et ceux que serrount de ces atteyntz, soient ars issint que eux soient punys par mesme cele chose dount ilz pecherent.’ Fleta.L.1.c.37. is a copy of Bracton. The Mirrour c.1.§.8. says ‘Ardours sont que ardent citie, ville, maison home, maison beast, ou auters chatelx, de lour felonie en temps de pace pour haine ou vengeance.’ Again c.2.§.11. pointing out the words of the appellor ‘jeo dise que Sebright &c. en tiel meason ou biens mist le feu.’ Coke 3.Inst.67. says ‘the antient 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 commissible not only on the inset houses, parcel of the mansion house, but to the out-set also, as barn, stable, cowhouse, sheep house, dairy-house, milhouse 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 22.23.Car.2. and 9.G.1. are the principal statutes against arson. They extend the offence beyond the Common law.

¶ Robbery was a felony at Common law. 3.Inst.65. ‘Scelus inexpiabile’ by the Ll.Cnuti.61. [see before in Arson.]15 It was punished with death. Britt.c.15. ‘de robbours et de larouns et de semblables mesfesours, soit ausi ententivement enquis—et tauntost soient ceux robbours juges a la mort.’ Fleta says ‘si quis convictus fuerit de bonis viri robbatis vel asportatis ad sectam regis judicium capitale subibit.’ L.1.c.39. See also Bract.L. 3.c.32.§.1.

§ Burglary was felony at the Common law. 3.Inst.63. It was not distinguished by antient authors, except the Mirror, from simple House-breaking, ib.65. Burglary and Housebreaking were called ‘Hamsockne’ ‘diximus etiam de pacis violatione et de immunitatibus domus, si quis hoc in postorum fecerit ut perdat omne quod habet, et sit in regis arbitrio utrum vitam habeat. Eac we cwædon be mundbryce & be hamsocnum, se ðe hit ofer þis do, þæt he ðolie ealles ðæs ðe aȝe, & sy on cyninȝes dome hwæþer he life aȝe: and we quoth of mound-breach, and of home-seeking he who it after this do, that he dole all that he owe [owns],15 and is in king’s doom whether he life owes [owns].’15 Ll.Eadmundi.c.6. and see Ll.Cnuti.61. ‘husbrec’ in notes on Arson, ante. A Burglar was also called a Burgessor. ‘et soit enquis de Burgessours et sunt tenus Burgessours trestious ceux que felonisement en temps de pees debrusont 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 ecclesiae, etiam murorum, portarumve civitatis aut burgi, ad feloniam aliquam perpetrandam. Noctanter dico, recentiores secutus; veteres enim hoc non adjungunt.’ Spelm. gloss. verb. Burglaria. It was punished with death. Ib. citation from the Office of a Coroner. It may be committed in the Outset houses, as well as Inset. 3.Inst.65. Tho’ not under the same roof or contiguous, provided they be within the Curtilage or Homestall. 4.Bl. 225. As by the Common law all felonies were clergiable, the statute 23.H.8.c.1. 5.E.6.c.9. and 18.El.c.7. first distinguished them 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. Bac. elements had affirmed, and 1.H.P.C.554. had denied it. Our bill must distinguish them by different degrees of punishment.

* At the Common law the offence of Housebreaking was not distinguished from Burglary, and neither of them from any other larceny. The Statutes at first took away clergy from Burglary, which made a leading distinction between the two offences. Later statutes however have taken clergy from so many cases of housebreaking as nearly to bring the offences together again. These are 23.H.8.c.1. 1.E.6.c.12. 5.&6.E.6.c.9. 3.&4.W.M.c.9. 39.El.c.15. 10.&11.W. 3.c.23. 12.Ann.c.7. See Barr.428. 4.Bl. 240. The circumstances which in these statutes characterise the offence seem to have been occasional and unsystematical. The houses on which Burglary may be committed, and the circumstances which constitute that crime being ascertained, it will be better to define Housebreaking by the same subjects and circumstances, and let the crimes be distinguished only by the hour at which they are committed, and the degree of punishment.

† The offence of horse-stealing seems properly distinguishable from other larcenies, here, where these animals generally run at large, the temptation is so great and frequent, and the facility of commission so remarkable. See 1.E.6. c.12. 23.E.6.c.33. 31.El.c.12.

‡ The distinction between grand and petty larceny is very antient. At first 8d. was the sum which constituted grand larceny. Ll.Aethelst.c.1. ‘ne parcatur ulli furi, qui furtum manutenens captus sit, supra 12. annos nato, et supra 8. denarios.’ Afterwards, in the same king’s reign it was raised to 12d. ‘non parcatur alicui furi ultra 12. denarios, et ultra 12. annos nato—ut occidamus illum et capiamus omne quod possidet, et inprimis sumamus rei furto ablatae pretium ab haerede, ac dividatur postea reliquum in duas partes, una pars uxori, si munda, et facinoris conscia non sit; et residuum in duo, dimidium capiat rex, dimidium societas.’ Ll.Aethelst. Wilkins p.65.

¶ Ll.Inae.c.7. ‘Si quis furetur ita ut uxor ejus et infans ipsius nesciant, solvat 60. solidos poenae loco, si autem furetur testantibus omnibus haeredibus suis, abeant omnes in servitutem.’ Ina was king of the West-Saxons, and began to reign A. C. 688. After the union of the Heptarchy, i.e. temp. Aethelst. inter 924. and 940. we find it punishable with death as above. So it was int. 1017. and 1035. viz. temp. Cnuti. Ll.Cnuti.61. cited in Notes on Arson. In the time of William the Conqueror it seems to have been made punishable by fine only. Ll.Gul.conq. apud Wilk.p.218.220. This commutation however was taken away by Ll.H.1. anno 1108. ‘Si quis in furto vel latrocinio deprehensus fuisset, suspenderetur; sublata wirgildorum, id est, pecuniarae redemptionis lege.’ Larceny is the felonious taking and carrying away of the personal goods of another. 1. As to the taking, the 3.4.W.M.c.9.§.5. is not additional to the Common law, but declaratory of it; because where only the care or use, and not the possession, of things is delivered, to take them was larceny at the Common law. The 33.H. 6.c.1. and 21.H.8.c.7. indeed have added to the Common law, by making it larceny in servants to convert things of his master’s. But qu. if they should be imitated more than other breaches of trust in general. 2. As to the subject of larceny 4.G.2.c.32. 6.G.3.c.36.[48.] 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 to things of various sorts either real, or fixed to the realty. But the enumeration is unsystematical and in this country, where the produce of the earth is so spontaneous, as to have rendered things of this kind scarcely a breach of civility or good manners, in the eyes of the people, qu. if it would not too much enlarge the field of criminal law? The same may be questioned of 9.G.1.c.22. 13.Car.2.c.10. 10.G.2.c.32. 5.G.3.c.14. 22.&23.Car.2.c.25. 37.E.3. c.19. making it felony to steal animals ferae naturae.

§ Breach of prison at the Common law was capital, without regard to the crime for which the party was committed. ‘Cum pro criminis qualitate in carcerem recepti fuerint, conspiraverint (ut ruptis vinculis aut fracto carcere) evadant, amplius (quam causa pro qua recepti sunt exposeit) puniendi sunt, videlicet ultimo supplicio, quamvis ex eo crimine innocentes inveniantur, propter quod inducti sunt in carcerem et imparcati.’ Bracton.L.3.c.9.§.4. Britt.c.11. Fleta L.1.c.26.§.4. Yet in the Y.B.Hill.1.H.7.2. Hussey says that by the opinion of Billing and Choke, and all the justices it was a felony in strangers only, but not in the prisoner himself. S.C.Fitz.abr. Coron.48. They are principal felons, not accessories. ib. Whether it was felony in the prisoner at Common law is doubted. Stam.P.C.30.b. The Mirror c.5.§.1. says ‘abusion est a tener escape de prisoner, ou de bruserie del gaole pur peche mortell, car cel usage nest garrant per nul ley, ne in nul part est use forsque in cest realme, et en France, eins [mais]15 est leu garrantie de ceo faire per la ley de nature.’ 2.Inst.589. the statute 1.E.2. de frangentibus prisonam restrained the judgment of life and limb for prison breaking to cases where the offence of the prisoner required such judgment.

It is not only vain, but wicked, in a legislator to frame laws in opposition to the laws of nature, and to arm them with the terrors of death. This is truly creating crimes in order to punish them. The law of nature impels every one to escape from confinement; it should not therefore be subjected to punishment. Let the legislator restrain his criminal by walls, not by parchment. As to strangers breaking prison to enlarge an offender, they should, and may be fairly considered as accessories after the fact. This bill saying nothing of the prisoner releasing himself by breach of jail, he will have the benefit of the first section of the bill, which repeals the judgment of life and death at the Common law.

* Gif wiccan, oþþe wiȝleras, mansworan, oþþe morþwyrhtan, oþþe fule afylede æbere horcwenan ahwhar on lande wurþan aȝytene, ðonne fyrsie man of earde, & clænsie ða ðeode, oþþe on earde forfare hi mid ealle, buton hi ȝeswican, & ðe deoper ȝebetan: if witches, or weirds, man-swearers, or murther-wroughters, or foul, defiled, open whore-queens ay-where in the land were gotten, then force them off earth, and cleanse the nation, or in earth forthfare them withal, buton they beseech, and deeply better. Ll.Ed.et Guthr.c.11. ‘sagae, mulieres barbara factitantes sacrificia, aut pestiferi, si cui mortem intulerint, neque id inficiari poterint, capitis poena esto.’ Ll.Aethelst.c.6. apud Lambard. et Ll.Aelfr.30. Ll.Cnuti.c.4. ‘mesme cel jugement (d’etre ars) eyent sorcers, et sorceresses’ &c. ut supra. and Fleta ut et ubi supra. 3.Inst.44. Trial of witches before Hale in 1664. The statutes 33.H.8.c.8. 5.El.c.16. and 1. Jac.1.c.12. seem to be only in confirmation of the Common law. 9.G.2.c.25. punishes them with pillory, and a year’s imprisonment. 3.E.6.c.15. 5.El.c.15. punishes fond, fantastical and false prophecies, by fine and imprisonment.

† As every treason includes within it a misprision of treason, so every felony includes a misprision, or misdemeanor. 1.Hale P.C.652.708. ‘licet fuerit felonia, tamen in eo continetur misprisio.’ 2.R. 3.10. Both principal and accessory therefore may be proceeded against in any case, either for felony, or misprision, at the Common law. Capital cases not being mentioned here, accessories to them will of course be triable for misprisions, if the offender flies.

‡ Whether the judgment of penance lay at Common law see 2.Inst.178. 2.H. P.C.321. 4.B1.322. It was given on standing mute: but on challenging more than the legal number, whether that sentence, or sentence of death, is to be given, seems doubtful. 2.H.P.C.316. Qu. whether it would not be better to consider the supernumerary challenge as merely void, and to proceed in the trial? Qu. too in case of silence?

¶ ‘Cum Clericus sic de crimine convictus degradetur, non sequitur alia poena pro uno delicto, vel pluribus ante degradationem perpetratis. Satis enim sufficit ei pro poena degradatio, quae est magna capitis diminutio, nisi forte convictus fuerit de apostatia, quia hinc primo degradetur, et postea per manum laicalem comburetur, secundum quod accidit in concilio Oxoni. celebrato a bonae memoriae S. Cantuarien. Archiepiscopo dequodam diacono, qui se apostatavit pro quadam Judaea; qui cum esset per episcopum degradatus, statim fuit igni traditus per manum laicalem.’ Bract.L.3.c.9.§.2. ‘Et mesme cel jugement (i.e. qu’ils soient ars) eyent sorcers, et sorceresses, et sodomites et mescreauntz apertement atteyntz.’ Britt. c.9. ‘Christiani autem Apostatae, sorti legii, et hujus modi detractari debent et comburi.’ Fleta.L.1.c.37.§.2. See 3.Inst. 39. 12.Rep.92. 1.H.P.C.393. The extent of the clerical privilege at the Common law. 1. As to the crimes, seems very obscure and uncertain. It extended to no case where the judgment was not of life or limb. Note in 2.H.P.C.326. This therefore excluded it in trespass, petty larceny, or killing se defendendo. In high treason against the person of the king, it seems not to have been allowed. Note 1.H.P.C.185. Treasons therefore not against the king’s person immediately, petty treasons, and felonies seem to have been the cases where it was allowed; and even of those, not for insidiatio viarum, depopulatio agrorum, or combustio domorum. The statute de Clero 25.E.3. st.3.c.4. settled the law on this head. 2. As to the persons it extended to all clerks, always, and toties quoties. 2.H. P.C.374. To Nuns also Fitz.abr.Corone. 461. 22.E.3. The clerical habit and tonsure were considered as evidence of the person being clerical. 26.Assiz.19. 20. E.2. Fitz.Corone.233. By the 9.E.4.28. b. 34.H.6.49.a.b. simple reading became the evidence. This extending impunity to a great number of laymen, and toties quoties. The Statute 4.H.7.c.13. directed that real clerks should, upon a second arraignment, produce their orders, and all others to be burnt in the hand with M. or T, on the first allowance of clergy, and not to be admitted to it a second time. A heretic, Jew, or Turk (as being incapable of orders) could not have clergy. 11.Co.rep.29.b. But a Greek or other alien, 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 were bishop’s, priest’s, deacon’s and subdeacon’s, the inferior being reckoned Clerici in minoribus. 2.H.P.C.373. qu. however if this distinction is not founded on the statutes 23.H.8.c.1. 25. H.8.c.3?

By merely dropping all the statutes it should seem that none but clerks would be entitled to this privilege, and that they would toties quoties.

§ Manslaughter, counterfeiting, Arson, Asportation of vessels, robbery, burglary, housebreaking, horsestealing, larceny.