though it be true that a tenure cannot be stolen, yet every man sees that the standing trees and corn may easily be stolen. And so far forth as trees, &c. are part of the freehold, so far forth also, they are personal goods. For whatsoever is freehold is inheritance, and descended to the heir, and nothing can descend to the executors but what is merely personal. And though a box or case of evidences are to descend to the heir, yet unless you can shew me positive law to the contrary, they shall be taken into the executors' hands to be delivered to the heir. Besides, how unconscionable a thing is it, that he that steals a shilling’s worth of wood, which the wind hath blown down, or which lieth rotting on the ground, should be hanged for it, and he that takes a tree, worth twenty or forty shillings, should answer only for the damage! _L._ It is somewhat hard, but it has been so practised time out of mind. Then follows sodomy, and rape, both of them felonies. _P._ I know that, and that of the former he justly says it is detestable, being in a manner an apostacy from human nature: but in neither of them is there anything of _animus felleus_. The statutes which make them felony, are exposed to all men’s reading. But because Sir Edward Coke’s commentaries upon them are more diligent and accurate than to be free from all uncleanness, let us leap over them both; observing only by the way, that he leaves an evasion for an impotent offender, though his design be the same, and pursued to the utmost of his power. _L._ Two other great felonies are, breaking and burning of houses; neither of which are defined by any statute. The former of them is by Sir Edward Coke (_3 Inst. p. 63_), defined thus:—Burglary is by the common-law, the breaking and entering into the mansion-house of another, in the night, with intent to kill some reasonable creature, or to commit some other felony within the same, whether his intent be executed or not. And he defineth night to be then, when one man cannot know another’s face by daylight. And for the parts of a mansion-house, he reckoneth all houses that belong to house-keeping, as barns, stables, dairyhouses, buttery, kitchen, chambers, &c. But breaking of a house by day, though felony, and punished as burglary, is not within the statute. _P._ I have nothing to say against his interpretations here; but I like not that any private man should presume to determine, whether such or such a fact done be within the words of a statute or not, where it belongs only to a jury of twelve men to declare in their verdict, whether the fact laid open before them, be burglary, robbery, theft, or other felony. For this is to give a leading judgment to the jury, who ought not to consider any private lawyer’s institutes, but the statutes themselves pleaded before them for directions.