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* 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.

* At the Common law, the offence of House-breaking 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 House-breaking, as nearly to bring the offences together again. These are 23 H. 8. c. 1; 1 E. 6. c. 12; 5 k 6 E. 6. c. 9; 3 & 4 W. M. c. 9; 39 El. c. 15; 10&11 W. 3. c.23; 12 Ann. c. 7. See Burr. 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 House-breoking 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.

Whosoever shall be guilty of Horse-stealing,* shall be condemned to hard labor three years in the public works, and shall make reparation to the person injured.

* The offence of Horse-stealing seems properly distinguishable from other larcenies, here, where these animals generally run at large, the temptation being 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.

Grand Larceny* shall be where the goods stolen are of the value of five dollars; and whosoever shall be guilty thereof, shall be forthwith put in the pillory for one half hour, shall be condemned to hard labor** two years in the public works, and shall make reparation to the person injured.

* The distinction between grand and petty larceny is very ancient. At first 8d. was the sum which constituted grand larceny. LI. Ælhelst. c. 1. ‘Ne parcatur ulli furi, qui furtum manutenens captus sit, supra 12 annos nafo, et supra 8 denarios.’ Afterwards, in the same king’s reign, it was raised to 12d. ‘Non parcaturalicui furi ultra 12 denarios, et ultra 12 annos nato—ut occide-mus ilium et capiamus omne quod possidet, et inprimis sumamus rei furto ablatse pretium ab hserede, ac dividatur postea reliquum in duas partes, una pars uxori, si munda, et facinoris conscia non sit; et residuum in duo, dimi-dium capiat rex, dimidium societas.’ LI. Æthelst. Wilkins, p. 65. VOL. I. 17

** LI. Inse, c. 7. ‘Si quis furetur ita ut uxor ejus et infans ipsius nesciani, solvat 60. solidos pcenae loco. Si autem furetur testantibus omuibus haere-dibus suis, abeant omnes in servilutem.’ Ina was King of the West Saxons, and began to reign A. C. 688. After the union of the Heptarchy, i.e. temp. Æthelst. inter 924 and 940, we find it punishable with death as above. So it was inter 1017 and 1035, i.e. temp. Cnuti. LI. Cnuti 61. cited in notes on Arson. In the time of William the Conqueror, it seems lo have been made punishable by fine only. LI. Gul. Cohq. apud Wilk. p. 218. 220. This commutation, however, was taken away by LI. H. 1. anno 1108. ‘Si quis in furto vel latro-cinio deprehensus fuisset, suspenderetur: sublata wirgildorum, id est, pecu-niarse redemptions lege.’ Larceny is the felonious taking and carrying away of the personal goods of another. 1. As to the taking, the 3 & 4 VV. 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 11. 8. c. 7., indeed., have added to the Common law by making it larceny in a servant to convert things of his master’s. But quære, if they should be imitated more than as to other breaches of trust in general. 2. As to the subject of larceny, 4 G. 2. c.32; 6 G. 3. c. 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, quære, if it would not too much enlarge the field of Criminal law? The same may be questioned of 9 G. J. c. 22; 13 Car. 2. c. 10; 10 G. 2. c. 32; 5 G. 3. c. 14; 22 h 23 Car. 2. c. 25; 37 E. 3. c. 19. making it felony to steal animals ferte natures.

Petty Larceny shall be, where the goods stolen are of less value than five dollars; and whosoever shall be guilty thereof, shall be forthwith put in the pillory for a quarter of an hour, shall be condemned to hard labor one year in the public works, and shall make reparation to the person injured.

Robbery* or larceny of bonds, bills obligatory, bills of exchange, or

promissory notes for the payment of money or tobacco, lottery tickets,

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 Inspectors’ notes for tobacco, shall be punished in the

same manner as robbery,or larceny of the money or tobacco due on or represented by such papers.* 2 G. 2. c. 25 §3; 7 G 3. c. 50.

Buyers* and receivers of goods taken by way of robbery or larceny, knowing them to have been so taken, shall be deemed accessaries to such robbery or larceny after the fact.

* 3 &. 4 W. & M. c. 9. § 4; 5 Ann. c. 31. § 5; 4 G. 1. c. 11. § 1.

Prison breakers,* also, shall be deemed accessaries after the fact, to traitors or felons whom they enlarge from prison.**

* 1 E. 2.

** Breach of prison at the Common law was capital, 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, atnplius (quam causa pro qua recepti sunt exposuit) 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. Co-ron. 48. They are principal felons, not accessaries, 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 mortal 1, car eel usage nest garrant per nul ley, ne in nul part est use forsque in cest realme, et en France, ems [mais] est leu garrantie de ceo faire per la ley de nature’ 2 Inst. 589. The stat. 1 E. 2, ‘de fragentibus priso-nam,’ ‘restrained the judgment of life and limb for prison- breaking, to cases where the offence of the 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 accessaries 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.

All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, enchantment, or sorcery, or by pretended prophecies, shall be punished by ducking and whipping, at the discretion of a jury, not, exceeding fifteen stripes.*

* ‘Gifwiecan owwe wigleras mansworan, owwe morthwyrhtan owwe fule afylede eebere horcwenan ahwhar on lande wurthan agytene, thonne fyrsie man of earde, and claensie lha. theode, owwe on earde forfare hi mid ealle, buton hi geswican and the deoper gebetan:’ ‘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 forth- fare them withal, buton they beseech, and deeply better.’ LI. Ed. et Guthr. c. 11. ‘Saga; mulieres barbara factitantes sacrificia, aut pestiferi, si cui mortem intulerint, neque id inficiari poterint, capitis pcena esto.’ LI. Aethelst. c. 6. apud Lambard. LI. Aelfr. 30. LI. Cnuti. c. 4. ‘Mesmo eel jugement (d’etrears) eyent sorcers, et sorceresses,’ &c. ut supra. Fleta tit 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. punish fond, fantastical, and false prophecies, by fine and imprisonment.

If the principal offenders be fled,* or secreted from justice, in any case not touching life or member, the accessaries may, notwithstanding, be prosecuted as if their principal were convicted.**

* 1 Ann. c. 9. § 2.

**As every treason includes within it a misprision of treason, so every felony includes a misprision, or misdemeanor. 1 Hale P. C. 652. 75S. ‘Licet fuerit felonia, tamen in eo continetur misprisio.’ 2 R. 3.10. Both principal and accessary, therefore, may be proceeded against in any case, either for felony, or misprision, at the Common law. Capital cases not being mentioned here, accessaries to them will of course be triable for misprisions, if the offender flies.

If any offender stand mute of obstinacy,* or challenge preremp-torily more of the jurors than by law he may, being first warned of the consequence thereof, the court shall proceed as if he had confessed the charge,**

* 3E. I.e. 12.

** Whether the judgment of penance lay at Common law. See 2 Inst. 178.2. H. P. C. 321. 4 Bl. 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. Quære, whether it would not be better to consider the supernumerary challenge as merely void, and to proceed in the trial. Quære too, in case of silence.

Pardon and privilege of clergy shall henceforth be abolished, that none may be induced to injure through hope of impunity. But if the verdict be against the defendant, and the court, before whom the offence is heard and determined, shall doubt that it may be untrue for defect of testimony, or other cause, they may direct a new trial to be had.*

* ‘Cum Clericus sic de crimine convictus degradetur, non sequitur aliapoe-na pro uno delicto, vel pluribus ante degradationem perpetratis. Satis enim sufficit ei pro pcena degradatio, quse 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 bonas memoriae S. Cantuaren. Archiepiscopo de quodam diacono, qui seapos- tatavit pro quadam Judaea; qui cum esset per episcopum degradatus, statim fuit igni traditus per manum laicalem.’ Bract. L. 3. c. 9. § 2. ‘Et mesme eel jugement (i.e. qui ils soient ars) eye n’t sorcers et sorceresses, et sodomites et mescreauntz apertement atteyntz.’ Britt. c. 9. ‘Christiani autem Apostatae, sortilegii, et hujusmodi 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 quoiies. 2 H. P. C. 374. To nuns also. Fitz. Abr. Coron. 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. Coron. 233. By the 9 E. 4. 28. b. 34 H. 6. 49. a. b. simple reading became the evidence. This extended impunity to a great number of laymen, and toties quoties. The stat. 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. H 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 bishops, priests, deacons, and sub-deacons, the inferior being reckoned Clerici in minoribus. 2 H. P. C. 373. Quære, however, if this distinction is not founded on the stat. 23. H. 8. c. 1; 25. H. 8. c. 32. By merely dropping all the statutes, it should seem that none but clerks would be entitled to this privilege, and that they would, toties quoties.

No attainder shall work corruption of blood in any case.

In all cases of forfeiture, the widow’s dower shall be saved to her, during her title thereto; after which it shall be disposed of as if no such saving had been.

The aid of Counsel,* and examination of their witnesses on oath, shall be allowed to defendants in criminal prosecutions.

* 1 Ann. c. 9.

Slaves guilty of any offence* punishable in others by labor in the public works, shall be transported to such parts in the West Indies, South America, or Africa, as the Governor shall direct, there to be continued in slavery.

* Manslaghter, counterfeiting, arson, asportation of vessels, robbery, burglary, house-breaking, horse-stealing, larceny.