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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.
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 con- demned to hard labor three years in the public works, and shall make reparation to the persons injured.
Whosoever shall be guilty of Horse-stealing,† shall be condemn- ed to hard labor three years in the public works, and shall make reparation to the person injured.
Grand Larceny‡ shall be where the goods stolen are of the va- lue of five dollars; and whosoever shall be guilty thereof, shall be
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. Noctunier 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 com- mitted in the outset houses, as well as inset, 3 Inst. 65. thoug'a 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 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, itis 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.
- 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&6E.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 BI. 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 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.
‡ The distinction between grand and petty larceny, is very antient. At first 8d. was the sum which constituted grand larceny. LI. 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 occide- mus 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, dimi- dium capiat rex, dimidium societas.’ LI. Aethelst. Wilkins, p. 65.
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