4

amy,'] or sodomy 2 with man or woman, shall be punished; if a man, by castration,' if a woman, by boring through the cartilage of her nose a hole of one half inch in diameter at the least.

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, 305, 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.-T. J.

'This word was not in the Report of the Revisors, but was inserted by Jefferson in the MS. copy already alluded to. He adds as notes to it: "1. Jac. I. c. II. 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."

"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." 2 § 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, "note that Sodomy is with mankind." But Finch's L. B. 3. c. 24. "Sodomiary 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. I. c. 37. says, "pecorantes et Sodomitæ 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 anciently punished with death, as it has been latterly. Ll. Aelfrid. 31. and 25. H. 8. c. 6. see Beccaria. § 31. Montesq.-T. J.

3 Bracton, Fleta, &c.-T. J.

4 Altered to "cutting" in MS. copy.

SECT. XV. Whosoever on purpose,' shall disfigure another, 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.

SECT. XVI. Whosoever shall counterfeit any coin current by

1 In the MS. copy the words " and of malice forethought shall maim another, or" are added here, and a note on this is:

64

22. 23. Car. 2. c. I. Maiming was felony at the Common law.

Britton, c. 25. Mahemium autem dici poteri, aubia aliquis in aliqua parte sui corporis læsionem acceperit, per quam affectus sit inutilis ad pugnandum: ut si manus amputetur, vel pes, oculus privetur, vel scerda de osse capitis laveter, vel si quis dentes præcisores amiserit, vel castratus fuerit, et talis pro mahemiato poterit adjudicari.' Fleta L. 1. c. 40. Et volons que nul maheme ne soit tenus forsque de membre tollet dount home es plus feble a 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. I. 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.' Nor does the Common law prescribe the same punishment for disfiguring, as for maiming."-T. J.

The punishment was by retaliation. "Et come ascun appele serra de tele felonie atteint et attende jugement, si soit le judgment tiel que il perde autriel membre come il avera tollet al pleintyfe. Et sy la pleynte soi faite de femme que avera tollet a home ses membres, en tiel cas perdra la femme la une meyn par jugement, come le membre dount ele axera trespasse." Britton, c. 25. Fleta, B. 1. c. 40. Ll. Ælfr. 19. 40. – T. J.

125. E. 3. st. 5 c. 2. 5. El. c. 11. 18. El. c. 1. 8. 9. W. 3. c. 26. 15. 16. G. 2. c. 28. 7. Ann. c. 25. By the laws of Æthelstan and Canute, this was punished by cutting off the hand. "Gif se mynetere ful wurthe slea man tha hand of, the he that ful mid worthe and sette uppon tha mynet smiththan." In English characters and words "if the minter foul [criminal] wert, slay the hand off, that he the foul [crime] with wrought, and set upon the mint-smithery.” Ll. Aethelst. 14. "Et si quis praeter hanc, falsam fecerit, perdat manum quacum falsam confecit." Ll. Cnuti. 8. It had been death by the Ll. Æthelredi 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. Operæ pretium vero est audire quam severus rex fuerit in pravos. Monetarios enim fere omnes totius Angliæ fecit ementulari, et manus dextras abscindi, quia monetam

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 each, or any such coin, shall be condemned to hard labour six years in the public works, and shall forfeit all his lands and goods to the commonwealth.

SECT. XVII. The making false any such paper bill, or note, shall be deemed counterfeiting.

SECT. XVIII.' Whosoever committeth arson, shall be condemned to hard labour five years in the public works, and shall make good the loss of the sufferers threefold.*

furtive corruperant. Wilkins ib. et anno 1125. When the Common law became settled, it appears to have been punishable by death. "Est aluid 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 2. Flęta, L. I. 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 merchandize, 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? 1. H. P. C. 229.-T. J.

2

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 making, is feiting."-T. J.

counter

3 343 L. c. 13. confined to four counties. 22. 23. Car. 2. c. 7. 9. G. 1. c. 22. 9. G. 3. c. 29.-T. J.

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 inexpiable." "Hus brec and bærnet and open thyfth æberemorth and hlaford swice æfter woruld laga is botleds." Word for word, "house break and burnt, and open theft, and manifest murther, and lord-treachery, afterworld'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 pœna vel sententia." Bract. L. 3. 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

SECT. XIX. 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 labour five years in the public works, and shall make good the loss of the sufferers threefold.

SECT. XX. Whosoever committeth a robbery,' shall be condemned to hard labour four years in the public works, and shall make double reparation to the persons injured.

SECT. XXI. Whatsoever act, if committed on any mansionhouse, would be deemed a burglary, shall be burglary, if com

serrount de ceo 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 Mirror 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., entiel meason ou biens mist de feu." Coke 3. Inst. 67. says, the ancient authors extended this felony further than houses, viz., to sacks of corn, waynes or carts of coal, wood or other goods." He denies it as commissible, not only on the inset houses, parcel of the mansion house, but the outset also, as barn, stable, cowhouse, 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. 23. Car. 2. and 9. G. 1. are the principal statutes against arson. They extend the offence beyond the Common law.-T. J.

1 I. Ann. st. 2. c. 9.

2 II. 12. W. 3. c. 7.

12. Ann. c. 18. 4. G. I. c. 12. 26. G. 2. c. 19.—7. J.

3 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. 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.-T. J.

4 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 fecerit ut Eac we perdat omne quod habet, et sit in regis arbitrio utrum vitam habeat. quædon be mundbryce and be ham socnum, sethe hit ofer this do that he dolie ealles thæs the age, and sy on Cyninges dome hwæther he life age; and we quoth of mound-breach, and of home-seeking he who it after this do, that he

mitted on any other house; and he who is guilty of burglary, shall be condemned to hard labour four years in the public works, and shall make double reparation to the persons injured.

SECT. XXII. 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 whoever is guilty thereof, shall be condemned to hard labour three years in the public works, and shall make reparation to the persons injured.

SECT. XXIII. Whosoever shall be guilty of horse-stealing,'

dole all that he owe [owns], and is in king's doom whether he life owes [owns.] Ll. Eadmundi. c. 6. and see Ll. Cnuti. 61. "hus brec," in notes on 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 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 ecclesiæ, etiam murorum, partarumve 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. 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 Homestall. 4 Bl. 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 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. Bacon's Elements had affirmed, and 1. H. P. C. 554. had denied it. Our bill must distinguish them by different degrees of punishment.—T. J.

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. I. I E. 6. c. 12. 5 and 6 E. 6. c. 9. 3 and 4 W. M. c. 9. 39 El. c. 15. 10 and 11 W. 3 c. 23. 12 Ann. c. 7. See Barr. 428. 4 Bl. 240. The circumstances which in these statutes characterize 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.-T. J.

The offence of Horse-stealing seems properly distinguishable from other