
    
      The State v. James H. Sutcliffe.
    
    The Court of Appeals may give judgment after dismissal of an appeal in case of felony; and this, although the appeal has been abandoned and benefit of clergy prayed.
    Where the indictment charges the burning of a house, benefit of clergy is not taken away by tire statutes which take it from tire burning of a dwelling house, or barn having corn or grain in it.
    
      Before Withers, J. at Charleston, May Term, 1849.
    INDICTMENT FOR ARSON.
    The prisoner was convicted at the May Term, 1849, and an appeal was taken in his behalf, which, after being docketed, was abandoned. On motion being made for judgment,, the prisoner insisted that this Court had no further jurisdiction in the matter, but that he must be remanded to await the judgment of the Circuit Court at its next term; and secondly, he prayed the benefit of clergy.
    
      C. B. Northrop, for the motion.
    I. The Court of Appeals in Law in this State has no original and final jurisdiction as a Court of Justice, enabling it to award judgment of death on a felon convicted of a capital crime.
    It is conceded that the practice has been to the contrary, hut this does not warrant the exercise of unlawful power, nor should it have the authority of established precedent, for the question has never before been presented, nor the jurisdiction challenged. The judicial murders which have been perpetrated, were at least eonsen-ted to by the prisoners and their counsel. This court should not, therefore, proceed to condemn a citizen to death, without ascertaining its authority upon better foundations than its own usage for a brief period, or the fear of acknowledging past error and usurpation.
    In case of felony, the jury must give their verdict in open court; Co. P. G. p 110. It is indispensably necessary, that after conviction, the defendant should be asked by the court if he has any thing -to offer, why judgment of death should not be awarded against him. 4 Blackstone, p. 375; 1 Chitty C. L., TOO. After trial and conviction, the judgment of the court regularly follows, &e. 4 Blackstone, 365.
    In England, the court here referred to is the court of the King’s Bench, composed of the Judges of that court. The judgment of the court is the act of the court sitting in full bench, and is of a regular term. • This eourt is one having original and appellate jurisdiction. The Judges who are members of this eourt, as delegates of the court, hold the assizes for the trial of issues which were made in thecourt, upon regular process from the court, and returnable thereto ; and the judgment awarded, was the judgment of the one court. Appeals were .taken up to the court before judgment., and the judgment on the appeal was still the judgment of the same court of original jurisdiction, not differing from the ordinary judgment, except that in one case the cause was actually heard and considered by the Judges in full beneh, and in the other, the court spoke by one of its members, who represented the whole bench as a delegate therefrom. In both eases, the judgment was the act of the ■court of King’s Bench, and so entered on the record of that court at Westminster. See Kidd and Crompton, &c.
    In the State of South Carolina there is no such court, having original and appellate jurisdiction. Prior to the year 1722 there was such a court, styled “ The supreme and general Court,” held in Charleston City and Port, from which all original writs were issued, and to which appeals were carried. See AA. 1734, 7 Stat. p, 184, and the preamble thereto. A Court of General Sessions and Common Pleas was then established, composed of Judges whose powers were the same as those of the Judges of England.
    As late as 1768, all criminal causes were tried at Charlestown. 7 Stat. p. 197. District courts were then established for the trial of causes, but the practice and proceedings in said courts respectively, were as nearly similar as may be, to the eourt then held in Charles-town, and the courts lrolden in Great Britain by his Majesty’s justices of assize, &e. There was no statutory regulation as to appeals, because, until 1789, the judgment of “ the Supreme and General Court” at Charlestown, was, like that of the King’s Bench at Westminster, original and final; but by A. A. 1789, the same complete, original and final jurisdiction was given to the district courts, as was at that time possessed and exercised by the courts of General Sessions held in Charleston ; 7 Stat. p. 253. It was therefore provided, that although each district court was possessed of original and final jurisdiction, motions for new trials, or arrests of judgment, alight be made “ under such restrictions and in such manner as the Judges might think proper to establish by the rules and orders- of’ court_» Seo. xv. No rules were made under this Act. A. D. 17S0 ; Constitution of South Carolina, Art. 3, Sec. 1. Art. x. Sec. 3, “ the Judges shall meet and sit at Columbia, for the purpose of hearing ant^ determining- all motions which may be made for new trials, and in arrest of judgments, and such points of law as may be submitted to them'' See A A. 1791, Sec. 1; Ibid, p. 260. The only courts having original and final jurisdiction, were the district courts; and motions for new trials and arrest of judgment, were provided for By A A. 1789, Sec. 15. and by the Constitution. The Constitutional Court, as it was termed, had no original or final jurisdiction-; that resided exclusively in the district courts. It was only a meeting of Judges, to hear and determine such motions as may be made before them, and such points of law as may be submitted to them. It pronounced no judgment, nor could warrant any execution. No record of judgment was under its custody. It issued no writ of mesne or final process, and had no seal. It was an assemblage of Judges, by courtesy termed a Court of Appeals, but had no one character of a court.
    A. A. 1824, Ibid, 325. A Court of Appeals was established, having appellate jurisdiction in all cases brought up from the District Courts, both of Law and Equity, !!in the.same manner, and with the same powers and authority in all respects whatever, as are now exercised by law by the Constitutional Court and the Court of Appeals, or by either of them separately.” A practice then existed for the Appeal Court to bring up a prisoner, appealing, before them, and on dismissing the appeal, to pass sentence, without any knowledge of the circumstances of the case, except from the report of the Circuit Judge, who usually confined his report to the grounds of appeal. The departure from the English system,and the usurpation of the Appeal Court, led to the anomaly of a person being tried before one Judge, and punished at the discretion of another, who heard nothing of the cause. This Court of Appeals, like its predecessor, the assembled Judges under the Constitution, and like their predecessor, after 1789, exercised final jurisdiction; and convicts were executed by the sheriffs of the several District Courts, without sentence of death being pronounced upon them by the court by which they were tried, under no other authority than what might be deduced from the 15th Sec. of A. A. 1789, authorizing the Judges to regulate appeals. No rules were established under this Statute by the Judges, and they seem to have proceeded as they had formerly done, when they, as one body, constituted “ the Supreme and General Court held in Charles-town.” This was adopted from the system which previously existed, when the constitution of the court was the same as that of England, although all of its original and final jurisdiction had been expressly taken away by Statute, and conferred upou the District Courts,
    The inconveniences of this system in its application to misdemeanors, led to the A. A. 1832, where the sentence was written by the Circuit Judge, and lodged with the clerk of the District Court, to he pronounced at the next term by the succeeding Judge; so that the convict did not receive his sentence until, in many cases, months after the dismissing of his appeal. ’Twas true he had the benefit of being sentenced by the Judge who heard the cause, but he had to endure imprisonment until the next term came on, although the ( Judge may, in his discretion, have been disposed to inflict a slighter punishment,
    The practice, however, continued in capital eases, because the defendant was entitled to answer, to be asked by the court, (which tried him,) “if he had any thing to offer why judgment of death should not be awarded against him.”
    The A. A. 1835, See. 3, restored the old assembly of Judges as held before 1824, but gave no new power or authority.
    IT. If such jurisdiction be assumed, and the convict plead his clergy, and an issue be raised thereon, whether of fact or of law, it must be determined by a Court having original jurisdiction, and should therefore be referred to the District .Court. Such an issue is neither a motion for a new trial, nor in arrest of judgment, nor is it a point of law submitted to the Judges, to which their jurisdiction is cqnfined by the Constitution and A. A. 1824 and 1835.
    The power is asserted as derived from the Court of K. B. in England, to which the assembly of Judges are likened. The practice there, however, is otherwise. Before the Stat. of Marlbridge, on demand of the Ordinary, the clerk would be given up ; “ but always after this statute the Court took an inquisition of office, ut sciatur quails ordinario ddiberari debeat.” Co. Inst. II, p. 164. The Court had to exercise its judgment, “ if clerk or not clerk;” and a record was made thereof. In Rex v. Armstrong and Burke, 1 Moody C. C. p. 21, where sentence of death had been pronounced on the defendants for a clergyable offence — the Judges met, and determined that the sentence should be vacated, and “ that the prisoners might be brought up at the next assizes, and asked why execution should not be awarded, and that they might then pray their clergy ”
    
      Leach's Oases, p. 409, Dean’s case; after conviction, the prisoner prayed clergy : “ against this plea the counsel for the prosecution, filed a counter plea, which alleged that he was not entiled, because it had been before allowed to him.” fl he Court gave the prisoner timé, until the ensuing session, to frame a replication to this counter plea. The issue which might have been made, may have depended on the identity of the person, and the inspection of the record. How could our Court of Appeals have determined, either the one without the aid of a jury, or the other without ordering up the record of the District Court ? Should the prisoner have been debarred of his right, on the trial of such an original issue, to move before the Court of Appeals for a new trial or in arrest of judgment, on sufficient grounds, which may have arisen at the trial 1 1 Chitty C. L. 687, shows a case where a jury are to be sworn to try an issue on the plea of clergy. The form of the judgment, in such case, is, l: therefore it is considered that he be not allowed the privilege of clergy, but susper coll,” &c. 2 Hale, 396. Where is the right of appeal, if the Court of Appeals, in the first instance, assume to try this issue and pronounce judgment?
    In the case of Sutcliffe, the objection on the part of the State to bis plea, is in the nature of a demurrer, and the defendant is enti-tied to a judgment of tbe District Court on the demurrer; and if ¿emurrer be sustained, then to his motion before the Court of Appeals, to reverse the judgment of the Circuit Judge. In Poul-ieris case_ (j0- i^ep ¿¡. 29, the question of clergy was brought before tire justices of assize, before whom he was arraigned.
    III. A conviction for “ burning a certain house of Thomas Corco-ran,” without some description thereof, shewing it to be a dwelling house, or a, parcel thereof, or a barn, with corn or grain or hay. not a parcel of a dwelling house, will not support a felonious judgment, either at common law, or by virtue of any British statute made of force in this State, or Act of Assembly known of.
    1. At Common law “the burning of the house of another” was felony, but this does not mean any house. It must be a mansion house, or parcel of a mansion house, whether, as Lord Coke terms it, an “ inset” or “ outset house;” ■ “ but burning of a barn, being no-parcel of a mansion house, is no felony.” Yet if the barn, not being parcel of a mansion house, have corn or hay within it, the burning thereof is felony. Coke Inst, iii, p. 67.
    It must then appear, by the indictment, what kind of a house is burnt, for a barn, whether it be a barn, parcel of the mansion house, or not being parcel of a mansion house, having corn or hay in it, or not being a parcel of a mansion house, and not having corn or hay, is, in each ease, the same thing, to wit: — a house. Of these three kinds of barns, each of the general class, house, the burning of the two first was, at common law, felony — of the last, no felony. Nor does it appear to have been other than trespass at common law. The charge in the indictment must be certain, so as to exclude all such houses, the burning of whieh would not be felonious. Arson, is the felonious burning of the house of another, and as the burning of a barn house of another, which is neither parcel of a mansion house, nor containing corn or hay, is not felony, it is not, technically, arson. The words, domum mansionalem, mean, in law, the mansion house, or outset and inset houses, parcel of a mansion house. It is of these houses only, that burglary can be charged. Therefore, domum mansionalem is indispensable in an indictment for burglary. But arson may be charged of other houses also, viz — barns, with corn and hay, though not parcel of the mansion house. Hence, domum mansionalem are not necessary words in the indictment for arson. This is a sound and logical reason for the difference in the indictments for arson and burglary; and shews, conclusively, that domum -and domum mansionalem are not equivalent and convertible terms. Ibid ad finem.
    
    At common law, no special words are necessary in describing a felony, but the description of the offence must be sufficiently certain. Hence, in arson, the words domum mansionalem may 'or may not be used, as they may or may not be applicable to the facts of the ease ; but domum, or its equivalent, (i e cottage, hut, barn, &c.) is necessary, because the crime is house burning. So in Holmes' case, Croke Charles, p. 376. domum mansionalem are the words employed ; but in Rex v. Donnevan, 2 Wm. Blackstone, 682, prison house was a sufficient descriptioti in the indictment for arson ; and in Virginia, Posey's case, 4 Call, 109, arson was sufficiently described 
      by words descriptive of a prison house; so in Poulter’s case, Co. Bep. xi, p. 29, the prisoner was charged with burning a house in the town of New Market, by which the greatest part of said town was burnt and consumed.
    The indictment in the principal case, only alleging “ the burning of the house of T. 0,” does not charge with sufficient certainty the felony of arson at common law; for the words would apply as well to the burning of a barn, not a parcel of a mansion house, and not containing corn or hay, as to any other species of house; and no judgment for felony at common law can be awarded upon a conviction thereon.
    2. Nor is the offence so charged, brought under any British statute of force in this State, or any Act of Assembly. If, as above contended, the common law felony of arson be not sufficiently described, then none of the statutes, merely adding punishment to, or ousting privileges in, that offence, can apply; however indifferent the court may be to the rule of law requiring the express terms of the Statute to be followed. No Statute or Act of Assembly which punishes such house burning as was not criminal at common law, can apply, because none of the counts conclude contra formam stat-uti. 23 Henry 8, c. 1, does not oust arson of clergy, but only certain species of arson at common law, to wit: — the burning of dwelling houses, including all outset and inset houses which are parcel of the dwelling house, and, in legal parlance, are intended by- the terms clomum mansionalem; and of barns, with corn or ■ grain therein. The other species of arson, to wit — burning a barn with hay therein, is not ousted of clergy, nor mentioned in the Statute. Coke Inst, iii, 67. 1 Hale P. 0. 572.
    The Statute, therefore, does not apply, because the descriptive words therein, are not employed in the indictment. Nor does the Stat. 22 and 23 Chas. 2, c. 7, apply, because, though the burning of “ barns (generally) or other houses or buildings,” of “ any person or person whatsoever,” would be sufficiently described by the words in this indictment, the burning is not charged as in the night time.
    Nor the Act of Assembly of 1828, Stats, vol. 6, p. 367, which makes the same offence described in the last Statute, if committed in the day time, a misdemeanour; because — 1st. Before this enactment, the acts of burning therein mentioned, were only trespasses, and the indictment should, therefore, conclude contra formam. 2d.
    The burning is not charged in the day time.
    These are the only statute laws which can be supposed to govern the case. Hence, not only is the 3d proposition established, but it is questioned whether the court can award any judgment at all on the record of conviction in this case,
    IY. Conceding the negative of the above propositions, for the sake of the argument, and, therefore, admitting that the prisoner is convict of arson, he is entitled to his clergy at common law; and he is not brought by the indictment under any of the statutes ousting arson of clergy.
    1. At common law, “ the offender is not ousted of his clergy, but where he burns some part of a mansion house, or a barn, with corn,” Co. Ins. iii,p. 67. Lord Coke, at page 114, under the title “clergy,” refers to Boulter's case, Rep. xi, p. 29, for a full exposition of the iaw> jn oase_ wiiei,e ¿ouse was jn a town, and where other town houses were burnt, (and town means a collection of mansion houses) all the Judges resolved that arson was clergyable at com-morL true bhat Lord.Hale, P. 0. 1, p. 573, does say, that “ before 23 H. 8, clergy was allowed therein, by force of the Stat. 25 Ed. 3 pro clero." Yet, in Boulter's case, it was expressly laid down, that all felonies were clergyable at common law, before the statute pro clero. The history of this statute shews that it was declarative of the common law, and restrictive of the privilege of clergy. Whatever question may have existed as to arson at common law not being clergyable before 25 Ed. 3, which is not expressly made of force in this State’; this has been considered and disposed of by Lord Hale, P. C. 1, 571-2; and Sir Michael Foster, pp. 192-3, and pp. 332, 336. The only reasonable doubt was, as to such arson as was of a traitorous or hostile character. The contrary has no countenance but from a passage in Chitty’s 0. L. vol. 1, p. 679, who refers to Comyn’s Justices, y 5, and 2 East P. G. 1017, 1031-2, which do not sustain his conjecture. And from a careless reading of Bremer's case, Leaeh 0. C. 219, Chitty, and subsequent writers, since the black Act 9 George 1, treat the question as immaterial, and as one of learned curiosity, as it really is in Great Britain since that statute. In Bremer's case, the question was, as to the ownership of the house burnt, and itwas considered that the crime of arson, at common law, as well as the burnings punished by9 Geo. 1, were crimes against “ the person in the actual and immediate possession of the house,” whose protection was the object of the law. In that respect, 9 Geo. 1 made no change, but the subjects of arson were, by that statute, extended, and the privilege of clergy was restricted. See Hale P. 0. 1, p 568. The statutes, themselves, if examined carefully, shew that, prior to their enactment, the offence of burning dwelling houses, and'barns with corn or grain, was clergyable, which the Legislature considered as an evil to be remedied by these statutes. These statutes provide for the very cases about which there had been doubts among the learned, viz: — insidiatores viarum (i e) highway robbers — incendiatores do-morum, (i e) burners of dwelling houses, and houses parcel of the mansion' — and depnpulaiores agrorum, (i e) burners of barns with, corn or grain, necessary to the food of man — but they do not provide for burners of barns with hay, which was of less consequence, as the food of beasts As to the books of precedent, Chitty and other writers have reference to the 9 Geo. 1, A. I). 1723, since which time, indictments are drawn under that statute. Archbold’s Criminal Pleadings, in the earlier editions, d. 178 and 180, gives the precedent of an indictment for arson, and recommends that, after the words “ house of another ” there should be a more special description of the house, by a videlicet.
    
    2. The prisoner is not brought, by the indictment, under any of the statutes ousting arson of clergy. None of the statutes of force in this State, and none in England, until 9 Geo. 1, oust arson generally of clergy; as appears from the illustration of the barn with hay, which was arson, and yet clearly clergyable, notwithstanding those statutes ; Co. Just. 3, p. 67 ; 1' Hále P. C. 572. So a mill-liouse was neither a dwelling house, nor parcel thereof, nor a barn with corn. See State v. Wooley, Barnwell District, A. D. 1822.'' The words of the statute are not followed in this indictment. Rex y. Dickenson, 1 Saunders, 135, n 3; 2 Hale P. 0. p. 190, &c. Nor is the defendant brought, in the indictment, within the statute substantially. Hale P. 0. 2, 336. It is a feeble defence of this indictment, to contend that domus is the same as dwelling house, for the precise language of the statute 23 H. 8; 4 & 5 P. & M. and the use of the word house, in 22 and 23 Ch. 2; 9 Geo. 1, and Act of Assembly 1828, all shew that the word house, in legal phraseology, is not restricted to dwelling house, but is a general term of' well understood meaning. Dwelling house does, indeed, include all within the cartilage of the mansion, but house, can haye no-sucli signification. As above observed, such a view leaves the distinction, as to indictments for burglary and' arson, without any reason. if house be equivalent to mansion- or dwelling house, why will it’ not be sufficient in an indictment at common law for burglary? Lord Hale P. C. 1, p. 567; Co. Rep. 4, p. 20. Barham's case.
    
    It was strongly urged in Dosey’s case, that the hind of house is a matter of evidence; and if the house burnt, was one, the burning of which would be arson, then the convict would lose his clergy, by force of the statute. Suppose, then, the house was a-barn with hay, described as i! house of another;” the Judge must charge, that if the evidence proved the burning, the prisoner would be guilty of arson; the jury would convict, and the court, who would award judgment according to the record, would refuse clergy ; Coke and the law to the contrary notwithstanding.
    
      Wm. E. Martin, contra.
    —
    Is this an indictment at Common Law, or- under the -Statute ?
    The only distinction in form between indictments under statutes and at common law, that I know of, is in the conclusion.
    
    In Arehbold’s Criminal Pleading, page 52, it is said, “an indictment at common law concludes against the peace of our lady, the Queen, her crown and. dignity ” — analagous to the words adopted here — “against the peace and dignity of the same State aforesaid.”—
    In the same authority, page 53, it is said, “ an indictment for an offence created by statute concliides, against the form of the statute in such ease made and provided — and against thepeaee of our lady, the Queen, her crown and dignity."
    This, then, is evidently an indictment at common law; but it is argued that as the Statute of 25 II. 8, e. 3, 1 Hale’s P. C. 573, P. L. 49, takes away clergy, the words of that Statute should have been followed. Let us see how far this objection applies: The objection, as I understand it, is that as formerly the indictments were in Latin, and the word domus was used, we are bound now to follow the meaning ascribed, which is dwelling house. Postponing fertile present, to take it up hereafter, the question how far domus is properly translated house, let us apply, at a somewhat more distant, view, the general doctrine in relation to indictments.
    
      This is not an objection to the concluding words of the indictment ; if it were, it could be seen by Arch. Orim. Pleading, page 53, that the conclusion against the peace and dignity, &e. is correet, where the subject matter is an offence at common law, clergy being taken away by statute.
    But the question here is narrower; and as I understand it, we are to enquire whether, if a word, (admitting that this is the case here) not in the statute, is substituted in the indictment for one that is, it is fatal. Arch. Crim. Plead, p. 47, expressly lays down the doctrine that where the substituted word is one of largor and more extensive signification, it will be sufficient. In a case in our own Courts, The State v. Le Creax, 1 McMullan, 489, for inveigling a slave to escape from his master, his Honor Judge O’Neall, in delivering the opinion, says that the material words of the statute having been used, it is sufficient, and quotes Stark. Crim. Plead. 249, and 7 Geo. 2, c. 21; (as to the form) Stark. Crim. Plead. 244, and 45 Geo. 3, c. 89. 3 Chit. Q. P. 1049.
    In the 2 vol. of Brevard Bep. p. 262, State Y. Till, will be found an indictment under 22 and 23 Ch. 2, c. 7, for burning a sawmill. It is said that the very words of the Act ot Assembly need not be used, if a recital is not professed to be given; but if other words are employed, they must exactly agree with-the sense.
    
    In Staley. Brown, 2 Spears, 129, it is said : “Where a statute declares that certain acts shall constitute an offence already existing at common law, then the indictment is to follow the usual forms ; and, says Evans, J. although penal statutes are to be construed strictly, yet this construction is not to be so narrowed as that offenders are to get off.
    In the ease of Gage v. Shelton, 3 Bieh. 242, of slander, the construction comes up incidentally, and Judge Johnson, delivering the opinion, maintains similar doctrine; and in the State v. Noel, 5 Blackford, Indiana Bep. 548, referred to in 2 U. S. JDig. p. 147, No. 76, it is held, that an indictment which adopts substantially the words of the statute will be sufficient. So in the U. S. Courts, in 2 Gallison. 15, in an indictment for a statute offence, it is sufficient if the offence is substantially set forth, though not in the exact words of the statute. A variance between the language of the statute creating an offence and the indictment, will not vitiate it, if the words used in.the indictment are equivalent to those of the statute. State v. Hickman, 3 Halstead, (New Jersey,) 299; State v. Lit lie, 1 Vern. B. 231; Arson, 2 vol. U. S. Dig. 255.
    But the indictment here is upon stronger ground even than this, as it is clearly an indictment at common law. Arch. Crim. Plead. 53, above referred to, recognizes the doctrine that the precise language of the statute need not be used, where it is at common law for an offence where clergy is taken away by statute; because, as I quoted from that work, it need not conclude contra formam statuti. If such a conclusion be unnecessary, why should the body of the indictment contain such precise words ? The contra formam statuti must have reference to what precedes it; that is to say, an offence is committed of a designated character — contra formam statuti. The illustration there used is, that the words of the statute need not be used, unless tbe offence is altered and changed in character ; as, for instance, when that is made larceny, to take and carry away, which would not he larceny at common law. Clergy was first allowed by 25 Ed. 3, ch. c. 4; Hawkins P. C. 481, which does not seem to have been of force in South Carolina.
    In 2-Hawkins P. C. page 483, the Stat. of 23 Henry 8, ch. 1, see. 3, P. L. 46, is referred to, and it is said by that authority, that persons guilty of “ wilful burning of dwelling houses or barns” &e. shall be deprived of benefit of clergy, &e.; but the writer says the Act was easily evaded by persons brought to trial standing mute, or challenging peremptorily above 20, whereby they prevented their being found guilty,'to which ease alone that Act applied ; and therefore, these defects were remedied by the 25 Henry 8, c. 3, p. 2, where it is provided, that every person who shall henceforth be indicted of petit treason — “ wilful burning of houses, or other felony, etc. according to the tenor and meaning of 23 Hen. 8, and shall, when arraigned, stand mute of malice, &c/ or shall challenge peremptorily above 20, &e. &e. &c. shall, from henceforth, lose his benefit of clergy,” &c. This last Act is to be found in the P. L. 49; and I beg leave to call the attention of your Honors to the distinction between the words of the* two Acts. In the first, the word “ dwelling house” is used. In the second, the word dwelling is not to be found. From which we must conclude, .either that the word house is the precise language now proper to be used, or else that the words lihouse and dwelling house” were then used synonymously.
    The next Statute in relation to clergy, that of 1 Edw. 6, chap. 12, 2 Hawkins, 482, had no reference to arson, and only so much of it was made of force in South Carolina as applied to wilful, killing and poisoning — P. L. 57. The remainder of the Statute, which is said by Ld. Hale, in 1 vol. 573, to have restored clergy, does not apply.
    The next is 5 and 6 Ed. 6, 2 Hawkins, 482, 1 Hale; 573. This Stat. re enacted 25 Henry 8, in this language — in totidem verbis. This Statute is made of force here, P. L. 58 — 'but in the margin of that work I find a note in manuscript, to the effect that the Statute of 1 Edw. 6, e. 12, which had repealed the Stat. of 23 and 25 Henry 8, not being, of force, this Act is unnecessary. It is worthy of remark, however, that in this Statute no reference is made to arson or house-burning.
    The next statute, relating to clergy, 4 and 5 P. and M. ch. 4; 2 Hawkins, 487 ; 1 Hale, 573 ; refers entirely to accessaries before and after the fact; and Lord Hale, in commenting upon it, makes no reference to principals. In that statute the word used is “ dwelling house.”
    The enumeration of Sir M. Hale, whose writings were ordered to be published by Parliament, under the supervision of a committee of ’House of Commons in 1680, 4 years after his death, (though not published apparently till 1778,) brings down the statutes no later than 4 and 5 P. and M.
    Baron Hawkins continues, and next refers to 3 and 4 Will, and Mary, c, 9.' Sec. 3, P. L. 86, makes no new provision, but enacts “.that if any person or persons whatsoever be -indicted for any of-fence for which, by any former statute, he or they is or are excluded from having the benefit of his or their clergy, if he or they had been thereof convicted by verdict or confession,” &c. &c. and goes on to provide that if such person stand mute, or will not answer directly, or challenge more than 20, or.shall be outlawed thereupon, he or they shall not be admitted to clergy. Nothing is said of arson, and here Hawkins concludes his enumeration, and says on the authority of Poulter's case, 11 Coke, 28 to 38, it is excluded from clergy in.all cases.
    The offence of arson is defined by Lord Coke, cap. 15, p. 66. to be the 11 malicious and voluntary burning of the house of another.” 1 Hale P. C. 566. The indictment, says Lord Coke, is “ quod feló-nica voluntaria and malitiore combussit domum."
    
    What shall be said to be “ domus Id. The learned writer goes on with his illustration as follows: in the first paragraph he uses the word “dwelling house;” in the next he says what shall be the “ house” of another ; in the third he says, it must be a burning the “ house” of another.
    In these three paragraphs of this great and good man, he uses the term “ dwelling house” once,-and “ house” twice. This shows clearly that they are considered convertible terms; and from the manner in which he makes the interrogatory, it is clear that he uses them as the synonyms of “domus” and of each other.
    That this is the language of ancient and modern times, no one can question. In Comyn Dig. 4 vol. 762, title Arson — the language is used, “ arson was felony by the common law, when a man maliciously “ burned the house of another.” Quotes H. P. C. 85. 3 Inst. 66. “ The indictment need only say domum”■ — same authority. In the same work and volume, page 790, speaking of the offence of arson, and when the party is ousted of clergy, the language is- — “in arson of a house or barn with corn,” &c. showing that when reference is made to the dwelling of man, house is the term used ; when referring to other buildings the description .is given as “■barn” “ outhouse,” “mill” &e. The term house, therefore, is “generic” — the others specific.
    In that sense they are used by the Lexicographers, both Law and English. In Poulter's case the word “ house” is used throughout.
    In Jacob’s Law Dictionary, title “ arson” and “ house,” the same conversion of terms exists.
    In Cunningham’s Law Dictionary and Tomlin’s, titles arson and house, the same rule prevails, and everywhere in ancient and modern writers the same rule of construction will be found to prevail. As late as 1 Yict. 1838, this language is used. “ Whoever shall unlawfully set fire to any house, stable, coach house, out house, warehouse, office, shop,” &c. everything but “ dwelling” house, .which is nowhere used. Sentence imprisonment, ,&.c. Arch. Grim. Plead. 297. Headed — Arson “ Burning Houses.”
    So that in ancient and modern .days there is no doubt .that “ house” means “ dwelling house and e converso, and that domus means house and “ e converso.”
    
    
      
      Sayne, Attorney General, same side.
    1. What is the offence charged in the indictment ?
    It is intended to charge the crime of “ arson1’ at common law, sometimes called “ House Burning” or “ Burning of Houses,” or still more generally, “Wilful Burning;” 2 Hale P. C. 345; Foster’s 0. L. 333, &c.
    It is defined tobe “the malicious and voluntary burning the Souse of another, by night or by day;” 1 Hale P. C. 566-7. “ House,” in this definition, I suppose to be synonymous with the latin 11 do-mus,” and means “Dwelling House,” or that which, on .account of contiguity, or being contributory thereto, has been considered in law as “parcel" thereof. To constitute this common law offence, the building burned must, “ as in case of Burglary,” be “ parcel” of the Dwelling House, and comprehended in the term “ Dwelling House ;” Co. P. C. 67 ; Hale, P. C. 567.
    Jacob’s L. D. Title “ Arson” and title “ House Cunningham’-e New Law Die. same titles; 3 Chitty C. L. 1123; 2 Buss, on C. 556, ' 557, and 558 ; 3 East, 457; 8 B. and O. 461.
    2. What is the proper form of an indictment at Common Law, for this offence ?
    1 Hale’s P. 0. 567, (citing Co. P. C.67,) says it runs quodfelonice voluntarle, et malitior-e combusset domum, without saying domum mansionalem,as in ease of Burglary: see 1 Hawkins P. 0. Book 1, c. 39, s. 7; Cunningham’s new L. D. title “ Arson,” giving- form of indictment.
    Jacob’s L. D. same title; 3 Chit. C. L. p. 1126 and 1127; 2 Buss, on C. 552; 2 East P. C. c. 21, s. 5, p. 1020; 3 Inst. 67; 3 East B. 460.
    3. Is the offence of Arson at Common Law, after verdict of guilty, within the benefit of clergy?
    In 4th Hawkins P. C. 282, we find the following : “ As to Arson. It hath been clearly settled since .Poulter’s case, that the principal not being in Holy orders, is excluded from clergy, upon an indictment in all eases.” 2 Hale’s P. C. 345, says, “ As to the case of, wilful -burning. It stands now a settled point, that if the principal be convict by verdict, or confession, or stand mute, or will not directly answer, he shall not have his elergy — this is the point resolved, 11 Co. B. 36, a, Poulter’s case ; and the constant practice is. and always hath been accordingly.” Foster’s Crown Law, p. 333, e. 9, and. sec. 8, says “ that 25th JET. 8, and 23d H. 8, as far as concerneth this point, [Benefit of Clergjr] are to be considered as forming one entire system of Police with regard to the offences which are the objects of them;” but Foster doubts as to these being revived by the Statute 5 and 6 Edvvd. 6. At p. 326, however, he adds, “ that the Statute of Ph. and M. puts the matter out of doubt with regard to arson.” See 3 Chitty C. L. 1127.
    4.The doubt in Pouiter's case arose from the fact, that the Statutes of 23d and 25th H. 8 were repealed- by the Stat. of 1st Ed. 6, and the question was first, whether these were revived by 5th and 6th Ed. 6 ; and secondly, if not, whether 4th and 5th Phil, and Mary took away clergy from the principa! in arson, by necessary implication. Coke and Hawkins consider Pouiter’s case .as turning mainly on the first view; Foster and Hale favor the latter. The Stat. 1 p¡,p 6, wag never ma¿e 0f force in this State, though the Statutes of '23d and 25th H. 8 were, as well as the Stat. 5 and 6 P. and M. The cause for doubt in Poultar’s case, could never exist here. See ^ vol. Statutes at Large, 459, 479, 480, 485, 582, 563. In the case of the King v. Breeme, Leach’s C. C. 219, it is said “ that the Stat. 9 Geo. 1, c. 22, introduces no new law, and was intended to remove the doubts raised in Boulter’s case.” The law stands here, then, as it did in England after that Statute. Chitty says “ that under this Act, as at Common Law, a building must be so connected with the mansion in evidence, as to be shewn to belong to itsee 3 East, 460 — 457. Som'e have been of opinion, that clergy never was extended to Arson; 1 Hale P. C. 571; 1 Chit. C. L. 678.
    The English reports furnish no instance of clergy allowed to one out of orders, convicted of arson, but cite many where culprits were hanged for that offence; 1 Hale’s P. C. 570.
    5th. Does the fact that Clergy is taken away"by the Statutes, or some of them, referred to, require any ehangejn the form of the indictment for Arson 1
    
    The denial of Clergy to any capital common law offence, other than High treason and Sacrilege, unless indeed it he Arson itself, (which some have considered as a species of high treason,) is by virtue of some Statute subsequent to the 25th Ed. 3. Murder, robbery, rape, burglary, and all other felonies punished by death, stand on this footing; see 4th Hawkins, p. 254; B. 2. c. 33, sect. 20 and 23.
    “To oust a man of the Benefit of Clergy by force of a Statute which takes it away from a capital offence at common law, there is no need that the indictment should conclude “contra formam statuti,” because the statute doth not alter the nature of the of-fence ;” see 4 Hawkins, 256 ; B. 2, c. 33, sect. 25 ; 2 Hale’s P. C. 190, 191.
    It is contended, however, that the words of the Statute, taking away Clergy, must be followed in the Indictment, as well as sustained by the evidence, to make such Statute available. But this, .though laid down in general terms, as law, is subject to qualification. In 4th Hawkins, p. 256; B. 2, c. 33, s. 25, it is said that'an Indictment containing words “tantamount in sense, and different only in the manner of expression, is as much within the Statute as if it followed the very words.” Foster’s C.- L., 126 and 131, is very strong to the same effect. The rule is there laid down with its qualification. “The principle is true,” says Mr. Foster, “that in prosecutions on penal Statutes, the words of the Statute are to be pursued; but it is equally true that we are not to be governed by the sound, but by the well known, true, legal import of the words.”
    An indictment upon a Statute requires more strictness than one at common law, where a personal privilege is taken away by Statute. Yet, even in the former case, Story J. in IT. S. vs. Baehelder, 1 Gal-lison, 5, says: “It is not necessary to follow the exact wording of the Statute. It is sufficient, if the offence be set forth with substantial accuracy and certainty, to a reasonable intendment.” This is not a case of an indictment under a Statute, but at common law; and the rule as qualified by Hawkins and Foster is of undoubted application.
    It appears that the Statutes of 23 d H. 8, and 4 and 5 Ph. and M. which are relied on as taking away Clergy, use the term “Dwelling House,” and not “House,” as used in this indictment.
    6th, We have then to enquire, whether the terms “House” and “Dwelling House,” are “tantamount in sense, and different only in the manner of expression ?”
    Are they, in the language of Foster, “of the same legal import 1” It is insisted that they are because, 1st, Coke, Hale, Foster, Hawkins, East, Russel, Chitty, and all the elementary writers speak of the “burning of Houses” as Arson; all consider the word “House” or “Domus,” as proper in an indictment for Arson at common law, while they all say that the evidence under such indictment must show that the building burnt was a dwelling house or “parcel” thereof; they all use “house” per se, as synonymous with “dwelling house.” 2nd, These writers, all writing subsequently to the enactment of the Statutes of H. and Philip and Mary, are silent as to the necessity of varying the old common law indictment, and suggest no caution on the subject. 3rd, No trace of a distinction taken between these terms, is to be found in any adjudicated English case. 4th, It has been decided that in the Statute 9 Geo. 1, the word “house” means^ “dwelling house” and the Courts have declared that no new law has-been introduced by the change of term in that Statute; see Leach C. 0., 219. 5th, Judges, Reporters, and elementary writers translate “domus” as “house,” and uso either term per se, as synonymous with “dwelling house,” and Jacobs, Cunningham, Tomlins, Bouvier, and other compilers of law dictionaries, define “house,” legally, as “the dwelling or habitation of man,” and give it as the synonyme of “domus.” The received technical moaning then, of the term “house” per se, as well as “domus,” is the same with “dwelling house.” And 6th, because the true and strict moaning of the word “house” without qualification, in the English tongue, is confined to the “dwelling,” and any other use of the term is inaccurate, loose, and of modern invention. All the old English standard authors use it in this confined sense, and it is so defined by Bailey, Kendrick, Proctor, Sheridan, Johnson, and other Lexicographers.
    Lastly, it is submitted that this Court should not be astute in supporting a view based on a distinction which escaped the lawyers, Judges, and Reporter in Poulter’s ease; and every English commentator on said case, down to the present time — a view purely technical, and not touching the merits of the case; which takes exception to a form of indictment sanctioned by Coke, Piale, Hawkins, East, Russel and Ohitty, and under which it cannot be shown that clergy ever was allowed, but under which, on the contrary, it would seem, that divers culprits have been hanged before and since the celebrated ease to which we have so often referred.
    In opposition to these views, and in support of the prayer of the prisoner, no direct authority can be produced; certain supposed analogies, and the application of general expressions of principle, must be resorted to. Gan, these control the uniform practice of ccn-times in regard to tie very matter under consideration % Has not tie practice made tie law so far as Arson is concerned 1
    
    If Poulter’s case is examined, it is manifest tiat tie ordinary technical rules of construction in regard to tie statutes considered, were made to yield to an interpretation based upon the justice of tie case, and sanctioned by ancient usage. Apart from its direct application, tie spirit of tiat decision would be conclusive of this case, were tie reasons in support of tie views urged in behalf of tie prisoner, far stronger than they are.
    But, I apprehend that we have no well established general principle opposed to us, and the strength of the analogies, really applicable, is destroyed by tie undisputed course of practice. Tie strongest case to show a distinction between “ dwelling house” and “ house,” is tie requirement of the former in an indictment for burglary; Hale P. C. 550, lays it down that “ it must be said domwm man-siondlem, where burglary is committed in a house, and not generally domum, for tiat is too uncertain, and at large.” This, certainly, draws a distinction between “ domum]' and “ domum mansionalem,” ■and of course, their English paraphrases “ house,” and “ dwelling house.”
    But it is the same high authority who, at page 567 of the same 'work, tells us that in arson, “domum" alone is sufficient; yet, in an-■sweriDg the query, (same page,) “what shall be said of domus ?" he •refers us to the cases of burglary to ascertain. In fact, eases in burglary are constantly referred to in the books, to settle what is the subject of arson; see 2 East P. C. 1020; 1 Hale P. C. 567, note (2.) 7th Dane’s Abr. 34. Lew. 'C. Cases, 46, Rex v. McDonald.
    
    1st Hawkins, 289, states that Staunforde and Anderson mention precedents in burglary where domus without the mansionalis is used, but suggests that, in.consequence of late precedents and opinions, to add mansionalis was safer.
    In Poulter’s case, the very case settling the point as to the exclusion of clergy in arson ; Lord Coke, one of the Judges and theReport•er, tells us that Poulter was charged with burning “ a house,” not a “ dwelling house.” True, the indictment in that case must have been in Latin. We infer, however, that it contained the word “ do-mus,’’ without the mansionalis.
    
    In Virginia, the very point raised has been ruled in the Commonwealth v.. Posey, 4th Call, 69. That case was decided in 1787, and the ten Judges delivered their opinions seriatim ; eight of the ten held that the term “ house” was sufficient in an indictment for arson, and that upon conviction under such an indictment, the party convicted was excluded from benefit of clergy. It is true that two •Judges dissented, and drew a-distinetion between “ dwelling house” •and “house.” But these. Judges likewise denied that the decision in Poulter’s case, and acquiescence in that decision in England for . two centuries, was authoritative in determining the construction of an English statute adopted in Virginia, and adopted after the decision. and the long acquiescence. The eases of Ehnendorf v. Taylor, 10 Wheaton, 152; Coates v. Muse, Brock. 539, and a host of others of a like character in the Supreme Court of the United States, were then unknown, or they might, perhaps, being American, have influ-«need these two too patriotic gentlemen, who scorned, its seems, to he controlled by British authority.
    
      Alexander Ii. Brown, in reply
    contended that all the analogies in the practice of that tribunal would be better preserved by adopting the course suggested by the enquiry, and remanding the cause to the circuit. The appellate and final jurisdictions of each of these tribunals would be better marked, the record of the court could be perfected where it originated, as of right it should be; that it would render the record available to the prisoner to its legal extent, in bar of other convictions in the court below. But as it now stands (presuming the court to reserve the right) -there is no process known to the law by which a superior tribunal can be commanded to certify the record to a court of inferior jurisdiction.
    To divide the jurisdiction, as he verily believed the law had already positively divided it, was to give to each court its proper functions — to the one appellate, to the other original and final jurisdiction. It would obviate many of the embarrassments growing out of this unprecedented case, and would secure • to the prisoner this important right, of having expressed on this case the opinion of a Circuit Judge, which, if it were favorable, would be conclusive, and if unfavorable could be tested and examined before the highest tribunal of the State. This privilege is no insignificant one in favor of human life, and should not be wrested from the accused by any construction or assumption of power. In this case the judgment which the court was empowered to pass, was controverted by tne prisoner; and the issue he presents may so involve facts, as of necessity to oust the jurisdiction of this court, unless a right is reserved to sit in judgment on issues of fact as well as of law.
    That this difficulty could arise, he cited Rex v. Armstrong, Moodie's Crown Cases, page 21; 2d Hale’s Crown Laws, p. 396 ; and Ohitty’s Crown Law, p. 687; Leach’s Crown Law, Beem's case. There was no exact precedent authorizing this court to act; in all the hitherto instances the prisoner quietly acquiesces in the judgment of the court; he makes no answer or answers negatively when asked, in the language of the law, “if he has anything to say why judgment of death should not be pronounced against him.” Even admitting .that the court may think that in all of those cases it was right and proper to exercise the power, now that their authority was solemnly questioned, and in the gravest of cases, it v\ as their duty promptly and totally to surrender it.
    The attention of the court is invited to an examination of the laws creating this tribunal and defining its duty. It will be then clearly seen that its jurisdiction is purely appellate — possessed of not one original power. Stat. 7th vol. 3 sec. page 326. Miller’s Compend, p 46. The prisoner here interposes his prayer of Clergy, and through his counsel contends that the indictment only charges the common law offence of arson, and that he is ready and willing to receive his judgment-^ameliorated as it must be by his prayer.
    The burning of the House of another is ai’son at the common law, and is clergyable under the law. The statutes 23 Henry 8 and 4 and 5 Pliilip and Mary, of force in this State, oust Clergy only in those atrocious cases where dwelling houses and barns with grain and corn are consumed, leaving the less heinous offence of burning houses where it stood at common law. To confirm this view we will first define the offence of arson. 2d. Cite the statutes and the construction given to those statutes. 4th. Blackstone, marginal page, 221. Arson, at common law, is defined to be “the malicious and wilful burning the house or out house of another man.” According to Lord Coke, it includes not only the mansion itself, but the outset also, as barn, stable, cow house, sheep house, dairy, mill house, and the like, parcel of the mansion. 3 Inst. 67, 3 Chitty’s Crown Law, p. 1123 ; and by the same authority, to burn a barn full of corn, at common law, was arson, though unconnected with the mansion. Arson, says East in his Crown Law, 2dvol. page 1012, “is the malicious and voluntary burning the house of another." In 1st Hale’s Pleas of the Crown, p. 567, he says, one is guilty of arson, quodfdonice volúntame et malitiose combusset domumand to these authorities may be added that of Coke, Foster, Hawkins, Blackstone and Russell, together with all other Crown law writers of England, demonstrating that the burning of the house of another is arson, and the offence well described under the common law by charging the burning of a house alone.
    If additional authority be needed, it can be conclusively derived from the construction given to the Statute of 9 Geo. 1, c. 22 ; vide Beeme’s case, 2d East, p. 1022, edition of 1806, though that statute is not of force in this State. “This statute,” says the writer, “did not alter the offence or create a new one, though it speaks of house, rick, stack, barn, booth, &c., in the most comprehensive terms, as the subjects of arson and in Barnwell District, South Carolina, an indictment was held good for arson when it charged the burning of a mill house, and the prisoner prayed and was allowed his Clergy.— If this construction is not aided by the authorities cited, the indictment is bad. If arson be not the burning of any kind of house, the property of another, there is no foundation for the indictment in this case; and should the State rest its argument that domus means a mansion house, and asks that judgment may be given against the accused, because the offence is sufficiently well described, we would suggest the language of Hale as fully in reply; if domus means dwelling house, how does it become necessary for that eminent Crown Law writer to say “in arson domus is enough, but in burglary,” the kindred offence, “domus mansionalis is necessary.” 1 Hale’s P. C. p. 567. Burglary can alone be committed on the mansion ; but arson on the mansion as well as all other houses, and is clergyable or otherwise according to the character of the building upon which the offence is committed.
    Section 1. “It seems agreed that not only a mansion house and the principal parts thereof, but also any other house and the outbuildings, as barns and stables, adjoining thereto, and also barns full of corn, whether they be adjoining to any othor house or not, are so far secured by law, that the malicious burning of them is arson.— And it is said that in an indictment they are well expressed by the word domus, without adding mansiomlis.” — Foster C. L. 1 yol, page 295.
    
      Now this indictment charges the prisoner with burning the house of another in all of the counts therein. The Statutes 23 Henry 8, ch. 1, and 4 and 5 Philip and Mary, both of force in this‘State, are in effect as follows: The first named statute ousts Clergy from all persons who shall “wilfully burn any dwelling house or barn wherein any grain or corn shall happen to be and the 2d ousts Clergy from all accessaries in the “burning of any dwelling house, or any part thereof, or of any barn then having corn or grain in the same.” Both of these Statutes are found in 2d vol. of Stat. pages 459 and 484.
    In the early history of the Criminal Law, 4 Blackstone, 373, among petit treasons were ranked these three offences: “Insidiatio mewum,” “depopulatio agroi-um,” and “combustio domorum,” and they were rigidly and severely punished as offences against the person of the crown. So long as they were regarded treasonable, they were consequently ousted of clergy; but so soon as the “privilegiwm clericalfe" began to he generally indulged in, and was by the Statute of Edward 3 extended to all petit treasons and capital offences, excluding only such as affect the king himself or his royal majesty, the hitherto distinctions which existed among these offences were destroyed, and the classification of capital crimes into treasons and felonies was firmly established. Treating on this subject the learned commentator adds: “We may observe the following rule. That in all felonies, whether new created, or by common law, clergy is how allowable, unless taken away by the express words of an act of Parliament.” 4 Black. 374. “So far as a person, who in respect of his orders or learning, or otherwise, is qualified to be admitted to the benefit of clergy, is denied it in respect of his crime, not amounting to high treason or sacrilege, such denial must be grounded on some act of Parliament made since the twenty-fifth of Edward the third.” 4th Hawkins’ Pleas of the Crown, Book 2, ch. 33, see. 23. Thus stood the law when it was adopted in South Carolina, the law of England, as it then was, together with the Statutes of Henry, and Philip and Mary. The question now properly arises what is the rule of construction of those statutes, and does the ■charged offence fall within them 1 Those statutes oust clergy from principals and accessories in the burning of dwelling houses and barns with grain and corn therein. If any doubt existed that the mere burning of a house is clergyable, the terms of these statutes are well calculated to remove them, for they oust clergy in cases of dwelling houses, and barns with grain and corn therein, and no other class of houses.
    To the rule of construction is previously cited, 4 Black, p. 374, in. which he says that in all felonies, whether newly created, or by common law, clergy is now allowed, unless taken away by the express words of the statute, we may add 2 Hale C. L. page 336, in which it is said: “Where a subsequent aet of Parliament ousteth clergy in cases of felony, the indictment must precisely bring the party within the case of the statute ; otherwise, though possibly the fact itself be within the statute, and it may so appear from the evidence, yet if it be not so alleged in the indictment, the party convict shall have his clergy.” Rex v. Jaclcson and Randall. 1 Leach, 305. The in-j diotment omitted to charge with “an offensive weapon,” and the court ruled that an indictment on any particular act, shall strictly J follow the words of the act, and the court cannot supply from any other circumstances a sufficient description of the offence. 1 Hale, 535, where an indictment charges robbing on a certain footway, and held to be insufficient to oust clergy under the statute, which says at or near the king’s highway. So also Boscoe’s Criminal Evidence, page 78. In Dickinson’s ease, 1 Saunders, to oust clergy for privily stealing, the offence must be charged in the language of the statute, uclam et secrete." otherwise it is clergyable. A barn containing hay or corn is the subject of arson, but it itiust be so charged in the indictment. East’s Crown Law, p. 1021, note to Susannah Minturn’s case. 1 Hale, 517 and 525, the indictment upon which a person is ousted of his clergy must follow the statute. 1 Hale, 567. If the bam has only hay in it, it is clergyable ; otherwise would it be if it contained grain and corn, and so charged under the statute in the indictment. One other important inference may be derived from the language of Hale (1 vol. 535) in commentating on the statute 23 Henry 8, c. 1., the very statute in question; he remarks, “this statute and that of Edward do not oust robbery of clergy in all cases, but only in two, namely, when the robbery is eom- ■ mitted in a mansion house, the owner, his wife, children, or servants being in the house, and put in fear, or when committed in or near the highway.” If committed, therefore, under any other circumstances, and so charged in the indictment, the offence of robbery is’ not ousted of its clergy. So also by that very same statute the burning of a dwelling house or a barn with grain or corn therein, is ousted of its clergy, not the burning of a house; and if the indictment omit to bring the offence within the act, no circumlocution or evidence will supply the deficiency, for that writer concludes in the following words : “for when any person is to be ousted of his clergy by virtue of any act of Parliament, two things are always requsite: first that the indictment bring the fact within the statute, but need not conclude contra forman statuii. Secondly, That the evidence and finding of the jury bring the case within the statute, otherwise the prisoner is to have his clergy.” In this ease the verdict charges the burning of a house, and the finding of the jury is in conformity. “And where the words of a statute are descriptive of the nature of the offence, the indictment must follow the very words.” Burrows Hep. 1037, so also 4th Hawkins Pleas of the Grown, Book 2d, ch. 25, sec. 110, a variety of cases will be found cited establishing this nicety in the construction of penal statutes. The number, as well as the conclusive character of the eases there noticed, renders this general reference necessary. No rule, therefore, of criminal law seems better established than this : “that where one is ousted of his clergy, the same offence ought to be contained in the indictment or appeal in such form and manner, and with the same circumstances as is contained in the statute ; otherwise the offender will have his clergy,”
    We regard these points now sufficiently well established, that arson, at the common law, is the wilful and malicious burning of the house of another, and is clergyable, as are all other felonies. That the Statute 23 Henry 8, c. 1, ousts elergy only in cases of burning of dwelling bouses. That the law requires the indictment to conform with the statute, in order to oust the clergy, and to describe the offence as burning the house of another is insufficient. That if the Latin word “ Domus” is equal to mansion house, it would be sufficient in burglary, whilst all the authorities expressly say that, in burglary it is necessary to say Donmm Mansionalem. It simply remains now to shew that, in indictments for arson, to oust elergy, the term dwelling house is used wherever the circumstances and facts of the case will warrant. No very recent authority can be cited on this point, for in England the Statute 9 George 1st, e. 22, ousting clergy from all burning of houses, stacks, ricks, &c., renders the distinction which hitherto prevailed in indictments unnecessary. Its operation was to confound the difference between dwelling houses and other houses, making the burning of any house arson, and ousting this offence, in all its phases, from clergy. But this statute has no force in South Carolina. The law of South Carolina is just where the law of England was with the Statute 23 Henry 8, c. 1, before the Statute of George was enacted. All the crown law writers of the present day speak of Arson to the general extent that it is made by that statute, and of its being ousted of clergy in all eases. lienee they say, “ Now it is only necessary to charge house in the indictment for arson, to oust it of clergy.” It will be remarked that this is by the operation of a statute ’never incorporated in the law of South Carolina.
    Before the enactment of this statute of George, the State can find precedents enough for inserting dwelling house in the indictment ; this too, without any extraordinary diligence. The propriety of thus describing the premises in the indictment in order to oust elergy, is in the first place suggested by the Statute 23 Henry 8, and 4 and 5 Philip & Mary, where it is declared that principals and accessories in the wilful burning of dwelling houses shall be ousted of clergy. Archbold’s Criminal Pleading, page 265, an indictment for arson charges a dwelling house. Pedley’s case, 1 Leach’s Crown Law. page 277, the indictment charged, burning a dwelling House. Holme’s case, 2 East Crown Law, page 1023, the indictment charges dwelling house. Also, Elizabeth Harris’ case, same authority. Sco-field’s case, 2 East, 1028 ; and authorities might be easily multiplied to shew that where the dwelling house is the subject, the indictment invariably so charges, but where other houses are burnt, Domus alone is sufficient. Domus alone, we have seen, describes arson, but did not oust it of clergy ; nothing less than the terms dwelling house will effect this end under the Statute of 23 Henry 8.
    TVe come now to the consideration of Poulter’s case, reported in Coke’s Reports, part xi, page 35, upon which the State has drawn so liberally. It is true that in the report of that ease, the term dwelling house is not used, but it is equally manifest that no technical strictness is employed in describing the offence. Lord Coke says, Poulter was convicted of house burning — certainly house-burning is no proper description of arson — the learning of the great reporter has been applied to the interpretation of the various as well as the numerous statutes involved in that case, the greater share of which have no existence here, and consequently the reasons 0f j^g resolves have no application in South Caralina. What is Hale’s understanding of the crime charged in Poulter’s case? We find i Hale, page 570, the following language, “ But as to the point the not allowance of clergy therein, there may be some matters to be examined; certain it is that at this day clergy is not allowable to a party convicted of wilful and malicious burning of a dwelling house, or of a barn with corn, quod vide Coke’s Beports, Poulter’s case, adjudged per Onmes Just, and the constant practice hath been to deny clergy to those convict of this crime, quod vide [Resolutions in Poulter’s case — also, 2 Hale, page 347. But quacwnque via data est the law stands settled, that clergy is taken away 'in all cases from the principal in the wilful burning of a dwelling house, or a barn with corn, quod vide 11 Co. B. Alex. Poulter’s case per totumP Hale understood the indictment in Poulter’s case as charging a dwelling house, and it is gratuitous to say that the distinction now urged in this case, and the decision sought for, had “ escaped the lawyers, judges and reporter in Poulter’s case, and every English commentator on said case down to the present time.” Neither is it so technical as not to have the sanction of the great names set forth by the State. We refer to the authority quoted by the State itself. In Poultor’s ease it will also be seen that there is a precedent found for the allowance of clergy, for the report says, ‘‘ on diligent search and enquiry they found that the judgement usually yj&ssusper coll except one which was petit librumJ At Essex, before Sir John Puckering and his companions.
    The report of Poulter’s ease has not met with the approbation that the State reserves for it, and it becomes somewhat questionable whether implicit confidence should be placed in all the reasons assigned ; for, says Foster, Crown Law, chapter 9, discourse 2, “ the t . judgment in Poulter’s case was founded in sound sense and upon legal principles, though not upon those the learned reporter hath chosen to found it upon.”
   Curia, per Wardlaw, J.

The prisoner was, at May Term last in Charleston, before Judge Withers, indicted for “ that he, &c. a certain house of one Thomas Corcoran, there situate, feloniously, wilfully and maliciously did set fire to, and the same house, then and there, by such firing as aforesaid, feloniously, wilfully and maliciously did burn and consume, against the peace and dignity of the same State afore-, said.” A verdict of guilty was rendered after trial, at the term aforesaid. An appeal was taken in behalf of the prisoner, and notice given to the Judge and Attorney General, that a motion for new trial would be made in this Court. A report for this Court was made by Judge Withers, and delivered to the counsel of the prisoner. The case was here docketed by the prisoner’s counsel, and at his request was marked appeal abandoned.” .The prisoner was placed at the bar, and it having been solemnly demanded of him why sentence of death should not be pronounced against him, he first insisted that this Court has no further jurisdiction in the matter, but that he must be remanded to await the judgment of the Circuit Court, at the next term; and, secondly, he prayed the benefit of clergy. Full argument has been heard, and I am now to announce the opinion 'of the Court upon these two points:

I. Before 1768 the General Court at Charleston had original and final jurisdiction of all criminal matters, extending to life or limb. From 1768 till 1790, there were district Courts held by one or more of the Judges of the General Court, under a practice avhich was rendered, .as nearly as could be, similar to that of the Courts of Assize and Nisi Prius in England. In civil actions all writs were issued from and. made returnable to the Court of Common Pleas in Charleston, although trials were had ih the other districts ; and at Charleston the Judges sat in bank to hear motions for new trial, or m arrest of judgment, and points of law reserved, in all actions — civil and criminal. The practice, then established, was for a convict whose trial had taken place in a country district, and in whose case argument was heard before the bench, or assemblage of the Judges, at the end of the circuits, to appear at the bar of the Court in Charleston, and there, if his conviction was sustained, to receive his sentence. In 1789 the Circuit Court Act gave to each of the district Courts the same complete, original and final jurisdiction, which had before been possessed by the Court of General Sessions and Common Pleas for Charleston, saving, in the 15th section, the right of any party thinking himself aggrieved in a district Court, to move “ for a new trial or arrest of judgment, under such restrictions and in such manner as the Judges may think proper to establish by the rules and orders of Court.” This section was a recognition of the mode of trying appeals before in use, rather than the establishment of a new mode, and it was the only direct reference 'had by legislation to a tribunal for appeals, before the State Constitution of 1790. The third section of the tenth article of that Constitution required the Judges to meet “ for hearing and determining all motions which may be made for new trials and in arrest of judgments, and such points of law as may be submitted to them.” So little did this change the pre-existing practice as to appeals, that the Act of 1791, which regulated the Circuit Courts, just then gone into operation under the Act of 1789, contains not a word concerning appeals. Indeed the Constitutional Court long subsisted with very little of regulation besides what is contained in the clause of the Constitution from which it took its name, and in its own orders and practice, most of which had come to it from the tribunal to avhich it succeeded. A section of an Act of 1792 calls it the adjournment Court, and requires that at least three Judges should be necessary to constitute jt. To accommodate the appellate tribunal to the changes that were made by the new system of district Courts, adopt-e¿ (Q X798, an Act of 1799 introduced some rules to be observed at the meeting of the “associate Judges at the end of the circuits,” to which rules some additions were made in But essential particulars, relating either to its organization or practice, the Constitutional Court, as it was left by the Constitution, stood until 1824, when a Court of Appeals, consisting of three Judges, was established. As is well known that Court, in 1835, gave way to a Court of Appeals composed of the ten Judges and Chancellors ; and that the next year to the present system.

At all times, and under all changes, it has been the unvarying practice of the Court which heard the motion’s for new trial, motions in arrest of judgment, and points of law, contemplated by the Constitution, to give judgment in the cases fe'ony brought before it, if judgment was, according to the result had in the Court, to be awarded. The earliest reported cases we have, which show the practice, are The State v. McCarty, Id. v. Hopkins and Id. v. Duestoe, in 1793-4; and from these it may be seen how unquestioned the practice then was. Hardly a case has since passed, where some instance of judgment of death, pronounced in the Court of Appeals, did not occur. Until 1832, even in a case of misdemeanor, the defendant who appealed was required to appear in the Court of Appeals, and itpon failure 'of his motion, to receive sentence there. This was rendered unnecessary, not unlawful, by the Act of 1832, which left unaltered, in cases of felony, the practice that in misdemeanors it made special provisions to dispense with.

Whether the power of awarding judgment, in cases of felony wherein the appeal has failed, would, in a careful division of duties between a court of original jurisdiction and one of exclusively appellate jurisdiction, be assigned to one or the other, it is here exercised at discretion by the Court of Appeals; and its exercise has been sanctioned by long practice, acquiesced in by all the public authorities, which has acquired the force of direct legislation. There is nothing in the State Constitution which prohibits the exercise by this court, of any judicial power, whether pertaining to original or appellate jurisdiction, that may have been conferred on it by law. Now to deny in general the power in question, would lead to conclusions concerning past cases, which it is shocking to contemplate. The denial of the power in this particular case, if accompanied by the admission of it in general, and rested on any sound principle, must find circumstances distinguishing this from all the cases of felony wherein appeals have been unsuccessful that have preceded it, sufficient to show that what was right in them, would be wrong in this.

The prayer for benefit of clergy made here, is not such a circumstance. Without the formal prayer, the benefit of it was given by law, and would be allowed by any court an-thorized to pass sentence. A denial of the prayer, is, in ef-feet, included in every judgment of death. If the mere prayer must arrest judgment here, because the question whether it should be granted was never before the Circuit Court, then in no case of felony within the benefit, should judgment have ever beeu awarded in the Court of Appeals, and then in every case of capital felony, it is at the option of the prisoner whose appeal has failed, whether he will receive sentence here, or stop the proceeding of this court by ioterpo-sing a claim, which, however unfounded, it cannot decide upon. If a question of the prisoner’s identity, of insanity, of pregnancy, or of other matter of fact requiring trial by jury, should seriously arise in this court, it might become necessary to refer it to the Circuit Court. But where the award or judgment involves only questions of law, it follows the dismissal of an appeal as a legal consequence, and the hearing of the motion for it, or the proceeding to it without formal motion, is no more the exercise of original jurisdiction, than is the remanding of a prisoner for another trial after granting his motion in arrest of judgment, or the making of any other order rendered necessary by the decision had upon an appeal.

The circumstance that the appeal has been abandoned, does not take this case out of the settled usage, which has been established in cases where the appeal is dismissed. An appeal abandoned, is only an appeal dismissed by consent of the appellant. The caséis in just the same situation, whether the dismissal results in one way or in another, whether it is solemnly argued and long considered, or the brief is submitted and an adverse opinion immediately pronounced, or the case is struck off the docket in defauh of prosecution, or the assent of the appellant is expressed by abandonment. No matter what the course of proceeding, after dismissal the questions submitted by a motion for a new trial have been decided, and motion for sentence and prayer of clergy must be matters which could not have been presented on the circuit, more thau in the case before us. A notice of appeal arrests the judgment; it is the right of the appellee to docket any case for dismissal, if the appellant should not docket it; the report of the Circuit Judge, consequent upon this notice, is made for this court; and whether in the hands of the elerk, or of the appellant’s attorney, is entrusted to an officer-of court to be properly used, according to the purpose for which it was designed ; this report, (or in default of it, a copy 0f the indictment and verdict, with information to be derived from the Circuit Judge,) gives to the court sufficient 'understanding of the case. Under these circumstances, abandoning an appeal takes from this court no power which the prosecution of it could have justified. No jurisdiction can arise to the court from the appellant’s submission to it of points of law, or from any consent given by him. In every case, the authority of the court is that, not of an arbitrator, but of a judge, depending not on the election of a party, but on the appointment of law. Terms imposed upon the grant of a motion, differ altogether from a condition, that power, not otherwise justifiable, shall be submitted to if the motion be denied; which condition must be supposed to be imposed upon a prisoner when his appeal is heard, and to justify irregular assumption of power, if from the hearing be derived a power to pass sentence, that does not exist when the appeal is abandoned.

To hold that by abandoning his appeal, after he has arrested the proceeding of the Circuit Court by notice of appeal, a prisoner found guilty of felony, can postpone judgment until the Circuit Court may award it, would enable him to postpone it to an extent that would be scandalous to the administration of justice. At the next Circuit Court after abandonment of the motion for new trial, notice of appeal might be again interposed as to some question concerning beuefit of clergy, or some new ground suggested for arresting judgment; that again might be abandoned, and so on, as long as ingenuity could furnish the pretence of a question requiring the decision of the Circuit Court.'

The Couit then is of opinion that the prisoner was properly put to the bar here for judgment. So far as his acknow-ledgement and submission could avail, the abandonment of his appeal has shewn that he has been properly found guilty of the felony of which he was charged, and that the charge was made in due form by the indictment.

II. Is the prisoner entilled»to the benefit of clergy 1 By the common law, clergy is demandable for any felony. Its denial must be grounded on some statute, and the indictment and evidence must expressly bring the case within the words of the statute. When it has been taken by statute from an offence which is felony at common law, the indictment need not conclude cóntra form,am statuti. If the words of the indictment are tantamount in sense, and differ .only in the form of expression from those used in the statute, the indictment is sufficient. It would be sufficient, if the of-fence were cont. form. stat. So there is no difference between the strictness necessary in describing a common law offence to bring it within the prohibition, and that necessary in describing a common law offence, from which benefit of clergy has been taken, to bring it within the denial. The Court must always be able, by inspection of the indictment and the verdict, to see the case to which, in awarding judgment, it must apply the law ; and it must see clearly, before it can be justified in declaring that the case is one in which the law has denied the benefit to which all felons are prima, facie entitled, and demands the solemn doom of death to be pronounced.

The Statutes 23 Hen. 8, c. 1; 25 Hen. 8, c. 3; and 4 and 5 P. & M. c. 4, are all of force here ; that of 1 Ed. 6, c. 12, never was. So that the question so much discussed in Coulter's case, and the commentaries thereon, does not at all arise in the case before us. There is no doubt here that the benefit of clergy has, by statute, been taken from the malicious wilful burning of any dwelling house, or barn, then having corn or grain in it, belonging to another person. As to crimes of burning, besides the statutes above mentioned, we have of force the Statute 37 H. 8, c. 6, against burning of frames, and the Statute 22 and 23 Ch. 2, c. 7, against the burning of any stack, house, building, or kiln, maliciously in the night time ; but not the Stat. Geo. 1, c. 22, (commonly called the Act,) which, amongst other acts of malicious mischief made capital, includes the setting fire to any house, barn, out-house, wood, stáck, &c. nor any similar statute.

It has been argued in this case, that long ago it was settled, and ever since has been held, that in an indictment for felonious arson, the word house, without dwelling, is sufficient ; that to constitute the crime at common law, the burning must be of a dwelling house or parcel thereof, (except the case of a barn, for which there must be special allegations and circumstances ;) and that by a verdict finding the prisoner guilty of the felony charged in this indictment, the Court is informed that his guilt of burning a dwelling house has been established ; for that it must be presumed that proper instructions were given to the jury, and that under those instructions, the evidence was found to show that the burning was of an inhabited building, or of some of the buildings which are parcel of a dwelling house — all of those buildings, and nothing else, being included in the term house, just as they are in the term dioelling house.

Lord C. J. Coke says, “Note a diversity between the indictment of burglary and burning; for the indictment of burglary must say domum mansionalem, but so need not the indictment of burning, but domum, viz: a barn, &c. malt-house, or the like.” The videlicit and the &c. under it, here make some confusion ; but the intention seems to be, to declare that the word domum, in the indictment, is alone sufficient, whether the burning was of the inhabited house, or of any of those ottisei-buildings, which (as had before been said) were, as well as the ball, parlor, lodging chambers, and other in-se£ edifices, included in the mansion-house. Thus it is understood by Hale, Hawkins, and the later writers on criminal law. If then domus has, since indictments were written in English, been correctly translated house, an indictment using house, sufficiently charges a ielony, without the term dwelling house, and judgment could not be arrested for its insufficiency. Such an indictment is, then, different from one that should omit maliciously, or some necessary ingredient of the crime ; and it will not do to say that such an omission as this might be supplied by sufficient evidence, and after verdict, must be presumed to have been supplied, just as well as dxoelling house must be presumed to have been proved under the allegation of house and proper instructions. The law which the writers, that have followed Coke, understood to have been laid down by him, is, that domus, in an indictment for burning, is, at common law, tantamount to domus man-sionalis.

It must be observed, however, that on the same page Lord Coke shows that he understands crematio domorum, used m the year-book 3 H. 7, 10, to mean burning of houses of any kind; that although he, m treating of burglary, was careful to use the words edifices and buildings, in reference to the inset and outset parcels of the mansion-house, yet, in the chapter on burning, he speaks of the inset and outset houses ; and that all the precedents which we have of indictments in English that contain only the word house, were framed after the Black Act passed, and by introduction of its phrase, set fire to, shew that they were framed under it, and with a view to the liberty of proving any house, which liberty its terms might be supposed to admit.

Lord Coke does not expressly say that an indictment with domus only, is sufficient as well to oust the benefit of clergy, as to establish a common law felony; but he had just before adverted to the statutes which took away the benefit from the burning of a dwelling house, or barn, with corn in it, and in sanctioning the omission of mansionalis in the indictment, he cannot easily be supposed to have intended an exclusion, from his general remark, of the most important cases under the head he was treating of. In the report of Poulter’s case the indictment is not given, but from expressions there found, the conclusion seems just, that only domus was used, and that that case, which was greatly considered, was one in which, under such 'an indictment, judgment of death was pronounced and -executed long before the Black Act was passed. It must have been held before the time of Lord Coke, by positive adjudications, (which seem to have been, known to him, although his references do not point them out) that the term dwelling house, used in the Statutes of H. -8, and P. & M. was well expressed in an indictment for burning by the word domus ; although the same word would not serve the same purpose in an indictment for burglary. It is for us to say whether, now that the indictment and statutes are in the same language, the term house signifies exactly the same as dwelling house. By establishing that the burning of a house is felony at common law, we are authorized to give judgment in the case before ns; but to give judgment of death, we must be clearly satisfied, not only that house embraces dwelling house, but that it embraces nothing else besides the very thing that the statutes designed to express by dwelling house. We can take nothing by intendment, as was long ago said by the Judges, in holding that a full description of the offence of rape could not dispense with the word rapient, used by the statute of West. 2.

If there can be, by common law, no felonious burning of a house, which is not a dwelling house, then, perhaps, from the indictment and verdict here, a necessary inference arises that the prisoner has been found guilty, of burning a dwelling house; although, even then, the inference would not be stronger than that held insufficient, when an indictment, charging that the defendant “ voluntarily, feloniously, and of his malice aforethought, slew” the deceased, could not avail, because the word murdravit, used in the statute, was not introduced.

It is not easy to ascertain how the felony of wilful burning was, by the common law, limited and defined. Arson, by modern writers, is usually said to be an offence against the habitation, considered especially malignant and pernicious, because of the terror, confusion and risk of life attending it, and because of the entire destruction of property which it occasions, and the immense desolation to which this may extend. So far, however, as either the motive of the offender, or the terrific and destructive consequences of his act, may be regarded, the burning of a building, not parcel of a mansion, may be, in some instances, an' offence of greater enormity, than in others would be the burning of some edifice connected with a dwelling. As some precise rule seems, however, to have been thought necessary, which would exclude acts not worse in motive or consequences than ordinary trespasses, and would include the usual cases of deep malignity and great devastation, it has been laid down that to render the burning of a house felonious, it must appear to have been parcel of a mansion. “Not only the bare dwelling house, but all out houses that are parcel thereof, though not contiguous thereto, nor under the same roof, as barns and stables, may be the subject of arson.” “ If a barn, stable, or warehouse, be parcel of the mansion house, and within the same common fence, though not under the same roof or contiguous, a burglary may be committed therein.” Thus, the descrip-t¡on 0f house which may be the subject of arson is precisely the same as that of the house in which burglary may be committed, except that, in the latter, the curtilage, home-stall, or common fence; is introduced. Its omission in the former probably arose from what is often observed by writers, that nicety as to the subjects of arson is, in England, rendered unnecessary by the Black Act and subsequent statutes. Reference is continually made to the head of burglary for cases decisive as to arson ; and if, in the latter, the mansion is extended beyond the curtilage, contiguity is indefinite, and we shall find no limit short of any edifice that is in any way used by an inhabitant of a neighboring dwelling.

But agreeing, as the writers on criminal law do, in the general explanation of what is meant by house, in the definition given of arson, the malicious and wilful burning of the house of another, they all concur also, that by common law, the burning of a bam filled with corn or hay, though not parcel of a dwelling house, was felony; and that so also was the burning of a stack of corn. Lord Coke, in his chap2 011 burning houses, to which subsequent writers refer for authority, declares the burning of a barn, not having corn or hay in it, nor being parcel óf a mansion-house, not to be felony, and says, the offender is not ousted of his clergy, but when he burns some part of a mansion, or a barn with corn but does not expressly say that by the law, as it then stood, the felony of burning was confined to the mansion and its parcels, a barn with corn or hay, and a stack of corn. On the contrary, he shows by reference to ancient authors, that the common law felony exlended to the burning. In 2 Inst. 188, in his exposition of the Statute West. 1, c. 15, he the same authors, and says, “burning of bouses, <fcc. felony by the common law, as appeareth by this Act, and our ancient authors.” The Act, which is said to be a rehearsal of the common law, amongst offenders not entitled t0 bail, enumerates those taken pur arson (burning generally) feloniously done; and it is burning without distinction, that Qianville classes amongst crimes punished capitally, or with l°ss °f member. The expressions used by some of the ancient authors cited, are ambiguous, as crematio domorum in the year book, alienus adas in Fleta, tectorum excesionis et incendia in the translation of the laws of the Canute. Bracton speaks only of grain and mansions, but the Mirror comprehends in the felony, all burning of houses or goods, done in the time of peace, feloniously, for mischief or revenge. By the ancient common law, house burning seems to have, been considered a species of hostile aggression, and was punished as crimen laesae magistrates. A Statute 8 H. 6, c. 16, declared1 it under some special circumstances of aggravation, high treason, and this statute, because of retrospective operation, was held to be only in affirmance of the common Even before the Statutes of H. 8, the year book 11 H. 7, 1, shews that one was indicted for that he had feloniously by night, burnt a barn, and because it wa» adjoining a mansion, this was held felony by the common law, and he was hung. It is impossible now to say when the ancient law on the subject assumed the form in which modern writers understand it to be presented by Lord Coke; or what influence statutes which never were of force here, may have had in moulding it to that form. A case in Plowden, cited in 3 Inst, shews nothing material; and Breham’s case, like the case Lovel v. Hawthorn, decides only that the words he burnt my barn,” were not actionable, because a barn filled with corn or hay could not be intended under the construction then adopted in slander of words in mitiori sensu, a construction which would have equally rendered the words harmless, because they did not necessarily impute a malicious burning. These cases, however, even more strongly than a single express decision in point, shew the undoubting sense of the. learned, in the time of Q,ueen Elizabeth, that the burning of an empty barn, not parcel of a mansion, was not felony; and confirmed, as they have been, by the concurrence of subsequent commentators, may well be opposed to any deductions now to be drawn from the writings of ancient authors. And yet, if no distinction between an empty barn, and any other building not parcel of a mansion, can, be supposed to have grown out of the special notice taken, both by the common law and the statutes, of a barn with certain articles in it, and if we look to the law of burglary for explanation of what shall be considered a parcel of the mansion, it is'hard, in this country of large farms and wide spaces, to adopt law which would confine felonious arson to the buildings within the curti-lage, and a barn outside, having therein com, grain or hay. It is not burglary, if the house entered be a vacant chamber in a building, of which other chambers are in the occupation of a tenant under lease; or if the house be a centre building unoccupied, though the wings are dwelling houses, setting fire to such unoccupied parts of a building, would fall under the Black Act; but that the partial destruction of those parts only, by malicious burning, would not have been felony at common law, has not been resolved. These and similar questions have been excluded from consideration in England by statutory provisions. Our law is strangely insufficient, if every building which it would not burglary to enter, may be burnt without dread of the punishments which await felony. And it would be as strangely inconsistent, if, when the Statute 37 H. 8, ¿nade of force here, punishes capitally the burning of any frame of timben' prepared towards the making of any house, the burning of a house erected and once inhabited, but at the time of the offence unoccupied, should not be felonious. On the other hand, the inconsistency is not much, less, when the burning of the frame is capital, and the burning of the unoccupied house only a felony within benefit of clergy ; and the Statutes 23 & 25 H. 8, would hardly be held, under the term dwelling house, to take benefit of clergy from the burning of an unoccupied house.

It has been argued, that even if the burning of any building in use, was a felony at common law, a building not parcel of a mansion, must be described in the’indictment by its peculiar designation, as a malt house, cotton house, and the like, and, therefore, that house, as used in this indictment, can¡ a^ter verdict, mean only dwelling house. There are English cases which hold house to be equivalent to mansion house, but those cases arose under the Statute of Geo. 1, which has the words, any house, accompanied by others that confine the signification of house, there used, to a building inhabited, or designed for the habitation of man. If, in the passage before quoted from 3 Inst. Lord Coke, by the <fcc. following barn, intended to mean (as from the preceding matter may be plausibly maintained) having corn in it, filled with hay, or the like, according to the circumstances to be shewn by proof, then he appears to have considered domus alone, sufficient in all cases, whether the building burnt was parcel of the mansion, or was a barn, not parcel of the mansion, but having such contents that the burning of it was felony. In Susannah Mintin's case, however, whilst the ^tat‘ ^ ®eo- was t0 ^ave done awuy all distinctions between full barns and empty ones, and between day time and night time, it seemed to be the opinion of all the Judges that, supposing it to lie necessary that there should be hay or corn in the barn, it must have been so stated, and no proof -would supply the want of such statement. The inference seems fair that, if the burning of a gin house or other building, not parcel of a mansion, is felony at common law, then that law considers such a building to be a house, and the felony is sufficiently charged by an indictment which uses either house only, or house, to wita gin house, or the like; but that to oust the benefit of clergy, the indictment must shew that the burning 'was of one of those houses which the Statute denying clergy particularly mentions.

The appropriate meaning of house may be, the abode of man, but its more general sense, as a covering or place of( shelter, is too -common to be altogether disregarded. Why'' was dwelling prefixed to house, in the Statutes of Henry 8, if house alone would have expressed the same meaning 1

It has been suggested, that the specification was intended to distinguish between the actual apartments of abode, and out houses, such as dove-cotes, dog kennels, and cow houses, which, although within the curtilage, may often be destroyed by fire, without injury to the dwelling. For destruction of these, the higher penalty provided for security of the habitation may have been, thought no more proper, than for the destruction of other more valuable buildings which are left with less protection, if the felony of arson extends only to the dwelling house, and buildings parcel thereof. A design to burn such out houses, may not always contemplate injury to the dwelling. Even where it may have done so, the accidental extinguishment of the fire before the dwelling was reached, may well make a difference in punishment, in like manner as a murderous battery is punished-less than a murder, and in many other instances, a diversity in uncontrollable consequences widely separates acts which are similar in guilty intent.

It has been again suggested, that the. purpose was to distinguish the burning of any parcel of a dwelling, from that of any other house — all being included in the common law felony; or, at any rate, the burning of any parcel of a mansion actually inhabited, from the burning of a house not inhabited ; — the common law felony embracing all houses intended for the habitation of man.

This Court designs to do no more than decide the question before it. The observations which have been made, are intended only to shew what doubts rest upon this question. We cannot feel, in construing the Statutes of Henry 8, that influence of the Statute of H. 6, (never of force here) and decisions under it, which may have affected opinions before the time of Lord Coke. We are not relieved by decisions made concerning the sufficiency of domus, when indictments were m latin, or concerning the sufficiency of house, under the Statute 9 Geo. 1, from placing the words of this indictment, and those of the statutes which deny clergy, together, and inquiring whether they are the same, or clearly equivalent. Having no guide but the common- law and the statutes of Henry 8, we cannot perceive, with that certainty which must be attained before the life of a fellow creature be taken, that the offence described in this indictment is included in the denial of clergy made by those statutes.

The prayer for benefit of clergy is then allowed, and the sentence for felony within the benefit will now be pronounced.

As that has been, by our statutes, made fine and imprison1" ment, the case of the prisoner is just as if he had been in-dieted and convicted of a misdemeanor, except that under the right of challenge, he has enjoyed privileges which one accused of a midemeanor is not entitled to, and that for a second offence, he may hereafter lose the benefit now allowed to him.

Nichaedson, Evans and Frost, JJ. concurred.

Withers, J. absent, from indisposition.

The prayer for benefit of clergy was allowed, and the sentence for felony within the benefit was pronounced by the court.

O’Neall, J.

In this case, I differ 'from the Court on the question of jurisdiction, and hence, it is my duty to give the reasons for that opinion. It is proper to state, as preparatory thereto, that although the prisoner gave notice of an appeal, he abandoned it, and made no motion in this Court. It is true the case was docketed, but the prisoner’s counsel was in possession of the report of the Judge below, and if he had not, at the request of the presiding Judge here, placed it in his possession, there would not have been any thing of the case in this court.

I agree, that where a prisoner proseciites an appeal, he brings up the whole case, and, in such a case, on dismissing the appeal, it is our duty to render the final judgment, which the court below would have done, if the case had not been removed by appeal. This has been the practice, uniform and settled, from the earliest days of our jurisprudence, and having often concurred in its exercise, I shall be the last to question it. But the case before us, stands on entirely different grounds. The motion of the Attorney General for sentence, is an original motion. There is nothing which makes it the consequence of any judgment which we are to render. It is in vain to say, that an appeal, not prosecuted, is the same as a motion dismissed by the Court. It is simply a letting fall of all proceedings by way of appeal, and the consequence is, that the judgment below remains undisturbed, 'and must be there enforced. For there is the record — and here it cannot regularly be, only when, as a consequence of the appeal prosecuted and dismissed, the duly is devolved on this Court of pronouncing the sentence-.

No doubt the Court of-Appeals, called the Constitutional Court, grew out of the conference of the Judges, on points reserved before the Constitution was adopted. By the Constitution, the Judges were to meet first ai the close of their circuit, and, by the amendment of 1816, at such times and places as the Legislature, from time to time, should direct, to hear all motions for new trial, in arrest of judgment, and such points of law as might be submitted to them. This clearly gave appellate, and no other jurisdiction, and so it has been always understood. For the submission of even a mere dry point of law, unconnected with an appeal case, has never been tolerated. The Act of 1824, which broke up the Courts of Appeal in Law and Equity, and established a separate Court, in its first section declares that the Court thus established shall exercise “ appellate jurisdiction.” The Act of 1835, which terminated that Court, established the Court of Appeals, consisting of ten Judges of Law and Equity, and clothed them with the power of hearing and determining all motions which may be made for new trial, in arrest of judgment, and such points of Law and Equity as may be submitted to them, with the same powers now exercised by the Court of Appeals. That court experienced an earlier death than any of its predecessors. For, in the next year it was abolished, and this Court established in the following words, “ That all appeals from the Courts of Law shall be heard and determined in a Court of Appeals con-sistingof the Law Judges.”

After this review, it seems to me plain, that the authority which this Court possesses, is appellate merely; and if the case be not here as an appeal, we have nothing to do with it. All appeals from the Courts of Law are to be heard by us. From what court does the appeal come before us, as to what sentence shall be passed on the prisoner? "What court has decided, that he is or is not entitled to clergy? The answer must be to each of these questions, no court has passed upon the matter. It seems to me that this ousts our jurisdiction. I suppose it would not be pretended that, if the Circuit Court was now in session, and the appeal abandoned, (as it is) the sentence could not be there passed; for, in such a case, the letting fall the appeal would leave the prisoner amenable to the judgment of the court which tried him. That, it seems to me, is the case now. But, it is said, it would present so many inconveniences in practice, that it could not be tolerated. If that were so, still I do not perceive how we could have jurisdiction. Certainly, mere inconvenience never clothed any court with a power which the law of its organization did not give. I think, however, the inconvenience is altogether in fancy. Take this case; the prisoner is remanded to the circuit for sentence. The Judge, on bringing him up for sentence, hears his prayer for clergy, and disallows it — he appeals; or the Judge allows it — and the Solicitor appeals — in either case, the appeal brings him and the sentence here, the Court hears the argument, affirms or reverses the judgment below, and pronounces the sentence which the Judge below should have pronounced. This is a very short delay. It preserves uniformity, and keeps the Court in its proper character of an appellate tribunal.

As, however, a majority of the court think they can hear the motion for sentence, the prayer for clergy, and according to the result, sentence the prisoner, and thus end the matter, I have no objection to state my views on the prisoner’s,prayer for clergy.

That the offence charged, “ the burning of a house,” is a clergyable felony, is, I think, perfectly clear. At common law, the burning of any house was (as I think) a felony. In Fleta, it is said, “ Si quis aides alíenos, nequitor, oi imnvici-tiani, vel praeda catisa, tempore pads, combusuit, et hide convictas pruditper apellum, vel sine, capitali debut senten-tia purvire.” (Selden’s Fleta, book 1st. chap. 37, p. 54.) This sentence, translated into 'English, is, “if any one wickedly, for enmity, or on account of spoil, shall have burned another’s houses, and has been thence convicted, either by appeal or without, he ought to be punished by a capital sentence.” This is a clear description of a common law felony. It is observable that, in it, the character of the houses burned does not seem to be regarded.

In his Institutes, Lord Coke tells us, “ burning is a felony by the common law, committed by any that maliciously and voluntarily, in the night or day, burneth the house of another.” At D, he tells us what is “ the house of another.” “ This is,” he says, not only intended of inset houses, parcel of the mansion house, but to the outset also, as barn, stable, cow house, sheep, house, dairy house, mill house, and the like, parcel of the mansion house;, but burning a barn, being no parcel of a mansion house, is no felony ;■ yet if there be corn or hay within, the burning thereof is felony, though-the barn be not parcel of a mansion house. But the offender is not ousted of his clergy but where he burned some part of a mansion house, or a barn with corn.” This authority is clear, that the burning of houses, other than the dwelling house proper, is felony. Indeed, I think, all which are part and parcel, the usual incidents of a dwelling house, and near enough to it to put it in danger if they be burned, are to be regarded as included under the general term, dwelling house, used in the Statutes hereafter to be noticed. All the reasons apply to such houses as well as the dwelling. The same danger to life, the same invasion of the security of home and its comforts, are to be found in the one as well as the other.

Whether that be so or not, is, perhaps, not important now to inquire. Nor is it of any consequence whether the burning of an empty barn, not parcel of the mansion house, be or not felony. It is, beyond all doubt, a criminal offence, ranking as a felony or as a misdemeanor, to burn the house of another, and since the Act making fine and imprisonment the punishment of a clergyable felony,, there is no difference-between such an offence and a misdemeanor, unless it be as to the cousequences of a second oflence.

If the burning of any other house than a dwelling house, is an offence punishable at common law, (whether the crime be a felony or misdemeanor) it is clear that the indictment, to oust the • prisoner of his clergy, must distinguish between them. For the charge of burning a house would not, ex vi termini, mean a dwelling house, from which clergy is taken away, by the Stats. 23d H. 8, c. 1, §3 — 25 H. 8, c. 3, §3, — 4 & 5 P. & M. c. 4. If might mean the lesser offence. As I understand Criminal Pleading, the offence must be so charged, that the court will know what judgment to give, without resorting to any thing extrinsic of the indictment. The Status of 23 H. 8, c. 1, § 3 — under which we are to pass — uses the words “ d welling house,” — any one convicted of burning adwelling house is deprived of his clergy. TheStat. 25 H. 8 c. 3, § 3, which undertook to extend the Statute 23d H. 8, c. 1, § 3, to persons standing mute, &c. used the word house, in its enacting clause, although in the proem it had used the ■word dwelling house.” Taking the two together, I suppose they would receive the same construction, that is, that clergy was taken away from the burning of a dwelling house; ■md this certainly becomes more plain, when the Stat. 4 & 5 P. & M. c. 4, is referred to, which takes away clergy from accessories before the fact, in burning a dwelling house.

If there be a doubt whether clergy be taken away from the Dffence charged, the duty of the Court is, to give the criminal the benefit of that doubt. The word dwelling house, is now of a certain and definite meaning. It means the habitation of human beings, where they gather themselves together to converse, to rest, to shelter, to eat, and to sleep. The wants of man have given him many other houses, not necessarily parcel of his dwelling, such as his cotton house, his work shop, his store house, his lumber house, &c. It cannot be that the term house, which covers all these, as well as a dwelling house, is definite enough to exclude clergy. Nor will it do to say, the evidence must give it the character and sense of a dwelling house. For if that were so, it would be constantly subject to a meaning to be obtained outside of the record. I am, therefore, satisfied that the piisoner is entitled to his clergy, and the Court having decided that the case is properly here, I have no doubt the court can give the judgment which the Court below, under similar circumstances, have given.

(The State v. Kitchens, 2 Hill, 612; The State v. Addington, 2 Bail. 516; The State v. Duestoe, 1 Bay, 377.) 
      
       Note. A later translation is “ irruptio in dommm et incendi-wnP The original Saxon “ hus-brec and boernet,” seem naturally to be rendered house breaking and burning. Hus, house, is by philologists derived from a root which means to cover.
      
     