and determine the offences "fraud or covin be or then shall be the master or mistress of "such maid or woman child, or the guardian in socage, or guar"dian in chivalry, of or to such maid or woman child.” 66 66 + Sect. 2. By 4 and 5 Philip and Mary, c. 8. s. 3. it is further enacted, "That if any person or persons above the age of four66 teen shall unlawfully take or convey, or cause to be taken years "or conveyed, any maid or woman child unmarried, being within "the age of sixteen years, out of or from the possession and against the will of the father or mother of such child, or out of or from the possession and against the will of such person or persons as then shall happen to have, by any lawful ways or means, the order, keeping, education, or governance of any "such maiden or woman child; that then every such person and persons so offending, being thereof lawfully attainted or con"victed by the order and due course of the laws of this realm, (other than such of whom such person taken away shall hold any lands or tenements by knight's service,) shall have and "suffer imprisonment of his or their bodies, by the space of two "whole years, without bail or mainprise, or else shall pay such "fine for his or their said offence, as shall be assessed by the "council of the queen's highness, her heirs or successors, in the "star-chamber at Westminster." " Sect. 3. By 4 and 5 Philip and Mary, c. 8. s. 4. it is further enacted, "That if any person or persons shall so take away, or cause to be taken away, as is aforesaid, and deflower any such maid or woman child, as is aforesaid, or shall against "the will, or unknowing of or to the father of any such maid or woman child, if the father be in life, or against the will, or unknowing of the mother of any such maid or woman child "(having the custody or governance of such child, if the father "be dead) by secret letters, messages, or otherwise, contract "matrimony with any such maiden or woman child, except such "contracts of matrimony as shall be made by the consent of "such person or persons as by the title of wardship shall then "have or be intitled to have the marriage of such maid or "woman child, that then every such person or persons so of fending, being thereof lawfully convicted, as is aforesaid, shall "suffer imprisonment of his or their bodies, by the space of five "years, without bail or mainprise, or else shall pay such fine for "his or their said offence, as shall be assessed by the said coun"cil in the said star-chamber; the one moiety of all which for"feitures and fines shall be to the king and queen's majesties, "her heirs and successors, the other moiety to the parties grieved." 66 Sect. 4. By 4 and 5 Philip and Mary, c. 8. s. 5. it is furWho may hear ther enacted, "That the king and queen's highness honourable "council of the star-chamber, by bill of complaint or information, "and justices of assize, by inquisition or indictment, shall have "authority by virtue of this act to hear and determine the said "offences; upon every which indictment and inquisition, such process shall be awarded and lie, as upon an indictment of 46 trespass at the common law." aforesaid. Cro. Car. 465. Sect. 66 + Sect. 5. By 4 and 5 Philip and Mary, c. 8. s. 6. it is further The forfeiture enacted, "That if any woman child or maiden, being above the of a woman conage of twelve years, and under the age of sixteen years, do at unlawful consenting to an any time consent or agree to such person that so shall make any tract. 3 Mod. "contract of matrimony, contrary to the form and effect of this 84. "statute, that then the next of the kin of the same woman child "or maid, to whom the inheritance should descend, return or come, after the decease of the same woman child and maid, "shall, from the time of such assent and agreement, have, hold "and enjoy all such lands, tenements and hereditaments, as the same woman child and maiden had in possession, reversion or "remainder, at the time of such consent and agreement, during "the life of such person that shall so contract matrimony: and "after the decease of such person so contracting matrimony, that "then the said lauds, tenements and hereditaments, shall descend, "revert, remain, and come to such person or persons as they "should have done in case this act had never been had or made, "other than to him only that so shall contract matrimony." 66 " 66 Sect. 6. By 4 and 5 Philip and Mary, c. 8. s. 7. Provided always, "That this act, nor any thing therein contained, shall ex- Orders for "tend to take away or diminish any liberty, custom or authority, orphans. touching or concerning any orphan or orphans, which now be or hereafter shall be within the city of London, or any other "city, borough or town, where orphans are commonly used to be " provided for, either by grant or by custom; but that the lord mayor of the said city of London, and the aldermen of the same "for the time being, and all and every other head officer or offi"cers of any other city, borough or town, where such orphans be provided for, shall and may have and take like rule, order, keep❝ing and charge of such orphan and orphans, and of all their "lands, tenements, goods and chattels, as heretofore they or any "of them lawfully had or used, or lawfully might have had and used, if this had not been made." Upon this statute the following points have been holden. 3 Keb.708.715. Sect. 7. FIRST, It is settled, that although the above statute Rex v. Moor, 2 gives authority only to the star-chamber and justices of assize to Lev. 179. S. C. hear and determine the offence mentioned, yet that information S. C. 2 Mod. or indictment will lie thereon in the court of king's bench, for there are no negative words, and therefore the jurisdiction of that court is not excluded. + Sect. 8. It seems also, that an information by the master of the crown office will lie for this offence as at common law, for that the above statute does not create any new offence, but only aggravates the punishment. 129. Rex v. Twisle ton, 1 Sid. 387. S. P. Rex v. Thorp, 5 Mod. 221. S. C. 2 Keb. 432. Rex v. Moor, S. P. Rex v. + Sect. 9. It seems also, that if the indictment or information state that the defendant "being above the age of fourteen years 2 Lev. 179. "took one A. then being a virgin unmarried, possessed of move- Boyal, 2 Bur. "able goods and seised of lands of great value, out of the custody 832. "of her mother, &c." the word being is a sufficient averment of the facts which follow. Sect. 10. It seems also, that it is no legal excuse for this of- Rex v. Twi sleton and 257. S. C. fence, that the defendant being related to the lady's father, and others, 1 Lev. frequently invited to the house, made use of no other seduction than the common blandishments of a lover to induce the lady secretly to elope and marry him, if it appear that the father intended to marry her to another person, and so the taking against his 1 Sid. 387. S. C. 2 Keb. 432. Hicks v. Gore, 3 Mod. 84. 3 Mod. 84. 169. 1 Brown, Cases in Chancery. Calthorpe v. 169. Rex v. Cornforth, 2 Stra. 1162. S. C. 1 Const's consent. + Sect. 11. But where a widow fearing her daughter, a rich heiress, might be seduced into an improvident marriage, placed her under the care of a female friend, who sent for her son from abroad, and married him openly in the church and during canonical hours to the heiress before she had attained the age of sixteen, and without the consent of her mother who was her guardian, it was held to be no forfeiture of her estate; for in order to bring the offence within the statute, it must appear that some artifice was used; that the elopement was secret; and the marriage to the disparagement of the family. + Sect. 12. It is agreed, however, that the forfeiture extends as well to the infant who consents as to the husband who takes. Sect. 13. It is said, that there must be a continued refusal of the parent or guardian, for that if they once agree, though they afterwards dissent, it is an assent within the statute. Sect. 14. It has also been decided, that an information will lie for taking away a natural daughter under sixteen years of age from the care and custody of her putative father, it being an offence within the statute 4 and 5 Philip and Mary, c. 8. s. 3. Of a nature similar to the offence of enticing away women children under the age of sixteen, which when done with a view of possessing their property is, as we have seen, provided for by the above statute of 4 and 5 Philip and Mary, is the offence of enticing away young women from their parents or guardians, above that age, for the purpose of prostitution. Lord Grey and others were indicted for a conspiracy to entice away the Lady Henrietta B. an unmarried daughter of the Earl of Berkley, of the age of eighteen years, (the lady being then unmarried and living under the protection of the Earl,) for the purpose of living in fornication with the said Lord Grey. At the trial no force was proved as used against the young lady, on the contrary she voluntarily eloped from her father's house; and it appeared that no other means were used than a solicitation to unlawful lust. There was, however, this aggravation of the offence, that Lord Grey was at that time married to the lady's eldest sister. The indictment was at common law, and none of the judges expressed any doubt upon the law, but the parties were convicted. No judgment was however given, as the family compromised the matter. (1 East, P. C. 461.) Stealing away Infants. By 54 Geo. 3. c. 101. it is enacted, "that if any person shall "maliciously, either by force or fraud, lead, take, or carry away, "or decoy, or entice away, any child under the age of ten years, "with intent to deprive its parent or parents, or any other per"son having the lawful care or charge of such child, of the pos session "session of such child, by concealing and detaining such child " from such parent or parents, or other person or persons having "the lawful care or charge of it; or with intent to steal any article "of apparel or ornament, or other thing of value or use upon or about the person of such child, to whomsoever such article may belong; or shall receive and barbour, with any such intent "as aforesaid, any such child, knowing the same to have been so, "by force or fraud, led, taken, or carried, or decoyed, or enticed away as aforesaid; every such person or persons, and his, her, "or their counsellors, procurers, aiders, and abettors shall be "deemed guilty of felony, and shall be subject and liable to all "such pains, penalties, punishments, and forfeitures as by the "laws now in force may be inflicted upon, or are incurred by, persons convicted of grand larceny."-By a subsequent clause, the act was not to extend to the father of an illegitimate child who took it away from the mother; nor is the act to extend to Scotland. Compulsory Marriage of Paupers. So the compulsory marriage of paupers has been held such a restraint upon the parties as to support an indictment against parish officers who have been guilty of this offence with a view of relieving their own parish and charging another with the maintenance of the pauper (R. v. Tarrant, 4 Bur. 2106.); yet when the paupers have voluntarily intermarried without any threats or constraint, though the parish officers have given the man money to do it, the fact is not indictable, for marriage being lawful in itself, the practice to procure it must be by some unlawful means to make it an indictable offence, (1 East, P. C. 461.) CHAP. XVII. OF BURGLARY. OFFENCES against the habitation of a man are of two kinds: F. Cor. 178. 1. Burglary. 185.264. Pulton, 132. 2. Arson. BURGLARY is a felony at the common law, in breaking and entering the mansion-house of another, or (as some say) the walls, or gates of a walled town, in the night, to the intent to commit some felony within the same, whether the felonious intent be executed, or not. Staun. 30. 1 Hale, 549. Leg. Can. 1. 61. Wilk. Leg. Aug. Sax. p. 273. Spelman, tit. Hamsecken. Sum. 79. 2 Hale, 360. 39.95. B, Cor. 93. 3 Inst. 63. Crom. 31. 4 Comm. 223. For the better understanding whereof, I shall consider the following particulars: 1. What shall be accounted night-time for this purpose. 2. Whether there must be both an actual entry and breaking. 3. What breaking is sufficient. VOL. I. K 4. What 22 Ass. Dalt. c. 151. Crom. 32, 33. 4. What entry is sufficient. 5. In what place this offence may be committed. 6. What degree of guilt is required in the principal intention. +7. In what manner burglary is deprived of the benefit of clergy. +8. Of statutes tending to prevent this offence. As to THE FIRST POINT, viz. What shall be accountéd nighttime for this purpose. Sect. 2. There are some opinions, that burglary may be committed at any time after sun-set, and before sun-rising; but it seems the much better opinion, that the word "noctanter," which is precisely necessary in every indictment for this offence, cannot be satisfied in a legal sense, if it appear upon the evidence, that there was so much day-light at the time, that a man's countenance may be discerned thereby. Cro. Eliz. 583. 9 Co. 66. 4 Com. 224. Dyer, 99. S. P. C. 30. 3 Inst. 64. 1 Hale, 551. 556. Con. Dalt. c. Crom. 31. 3 Inst. 64. 1 Hale, 508. 527.551. As to THE SECOND POINT, viz. Whether there must be both an entry and a breaking. Sect. 3. Notwithstanding some loose opinions to the contrary, there seems to be no good cause to doubt, but that both are required to complete this offence; for the words "fregit" and "intravit" being both of them precisely necessary in the indictment, both must be satisfied: and à fortiori, therefore, there can be no burglary, where there is neither of them; as if on a bare assault upon a house the owner fling out his money. Fost. 108. As to THE THIRD POINT, viz. What breaking is sufficient. (1) Sect 4. It seems agreed, that such a breaking as is implied by law in every unlawful entry on the possession of another, whether it lie open or be inclosed, and will maintain a common indictment, or action of trespass quare clausum fregit, will not satisfy the words C. Car. 65. 225. felonicè et burglariter fregit, except in some special cases, in which Kelynge, 67. (1) There has been a variety of decisions as to nice points of breaking and entering.-In general, they are questions of fact whether the house was broken, or entered; the smallest degree of either being sufficient to constitute that part of the offence. With respect to breaking, the older authorities seem to imply that, in cases of actual (not constructive breaking) there must be either a removal of some fastening, in the cases of opening doors and windows, or an actually breaking of the house. But modern cases have gone farther. For it has been held, that opening a sash-window only held down by the weight of the pullies, and not otherwise fastened, is a breaking." (R. v. Harrison, E. T. 1821. Chetwynd, Burn, App. 86.)-So lifting a door-flap of a mill, not otherwise fastened than by its own weight, has also been held a breaking (E. P. C. v. 2 p. 48). But in another case, not distinguishable from this last on principle (Callam's case, O. B. Sess. Nov. 1809), the person was convicted of burglary, by entering at a cellar-flap, " it kept down by its own weight only, and no other |