CHAPTER THE SEVENTEENTH.
OF OFFENCES AGAINST PRIVATE PROPERTY.

THE next, and laft, fpecies of offences againft private fubjects, are fuch as more immediately affect their property. Of which there are two, which are attended with a breach of the peace; larciny, and malicious mifchief: and one, that is equally injurious to the rights of property, but attended with no act of violence; which is the crime of forgery. Of thefe three in their order.

1. LARCINY, or theft, by contraction for latrociny, latrocinium, is diftinguifhed by the law into two forts; the one called fimple larciny, or plain theft unaccompanied with any other atrocious circumftance; and mixt or compound larciny, which alfo includes in it the aggravation of a taking from one's houfe or perfon.

AND, firft, of fimple larciny: which, when it is the ftealing of goods above the value of twelvepence, is called grand larciny; when of goods to that value, or under, is petit larciny: offences, which are confiderably diftinguifhed in their punifhment, but not otherwife. I fhall therefore firft confider the nature of fimple larciny in general; and then fhall obferve the different degrees of punifhment, inflicted on it's two feveral branches.
SIMPLE
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SIMPLE larciny then is “the felonious taking, and carrying “away, of the perfonal goods of another.” This offence certainly commenced then, whenever it was, that the bounds of property, or laws of meum and tuum, were eftablifhed. How far fuch an offence can exift in a ftate of nature, where all things are held to be common, is a queftion that may be folved with very little difficulty. The difturbance of any individual, in the occupation of what he has feifed tto his prefent ufe, feems to be the only offence of this king incident to fuch a ftate. But, unqueftionably, in focial communities, when property is eftablifhed, the neceffity whereof we have formerly feen^a , any violation of that property is fubject to be punifhed by the laws of fociety: though how far that punifhment fhould extend, is matter of confiderable doubt. At prefent we will examine the nature of theft, or larciny, as laid down in the foregoing definition.

1. IT muft be a taking. This implies the confent of the owner to be wanting. Therefore no delivery of the goods from the owner to the offender, upon truft, can ground a larcity. As if A lends B a horfe, and he rides away with him; or, if I fend goods by a carrier, and he carnes them away; thefe are no larcinies^b . But if wine, and takes away part thereof, or if he carries it to the place appointed, and afterwards takes away the whole, thefe are larcinies^c : for here the animus furandi is manifeft; fince in the firft cafe he had otherwife no inducement to open the goods, and in the fecond the truft was determined, the delivery having taken it's effect. But bare non-delivery fhall not of courfe be intended to arife from a felonious defign; fince that may happen from a variety of other accidents. Neither by the common law was it larciny in any fervant to run away with the goods committed to him to keep, but only a breach of civil truft. But by ftatute 33 Hen. VI. c. 1. the fervants of perfons

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^a See Vol. II. pag. 8, & c.
^b 1 Hal. P. C. 504.
^c 3 Inft. 107.
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deceafed,
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Deceafed, accufed of embezzling their mafter's goods, may by writ out of chancery (iffued by the advice of the chief juftices and chief baron, or any two of them) and proclamation made thereupon, be fummoned to appear perfonally in the court of king's bench, to anfwer their mafter's executors in any civil fuit for fuch goods; and fhall, on default of appearance, be attainted of felony. And by ftatute 21 Hen. VIII. c. 7. if any fervant embezzles his mafter's goods to the value of forty fhillings, it is made felony; except in apyrentices, and fervants under eighteen years old. But if he had not the poffeffion, but only the care and overfight of the goods, as the butler of plate, the fhepherd of fheep, and the like, the embezzling of them is felony at common law^d . So if a gueft robs his inn or tavern of a piece of plate, it is larciny; for he hath not the poffeffioni delivered to him, but merely the ufe^e : and fo it is declared to be by ftatute 3 & 4 W. & M. c. 9. if a lodger runs away with the goods from his ready furnifhed lodging. Under fome circumftances alfo a man maybe guilty of felony in taking his own goods: as if he fteals them from a pawnbroker, or any one to whom he hath delivered and entrufted them, with intent to charge fuch bailee with the value; or if he robs his own meffenger on the road, with intent of charge the hundred with the lofs according to the ftatute of Winchefter^f.

2. THERE muft not only be a taking, but a carrying away: cepit et afportavit was the old law-latin. A bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a fufficient afportation, or carrying away. As if a man be leading another's horfe out of a clofe, and be inn, has removed them from his chamber down ftairs; thefe have been adjudged fufficient carryings away, to conftitute a larciny^g . Or if a thief, intending to fteal plate, takes it out of a

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^d 1 Hal. P. C. 506.
^e 1 Hawk. P. C. 90.
^f Fofter. 123, 124.
^g 3 Inft. 108, 109.
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cheft
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cheft in which it was, and lays it down upon the floor, but is furprized before he can make his efcape with it; this is larciny^h .

3. THIS taking, and carrying away, muft alfo be felonious; that is, done animo furandi: or, as the civil law expreffes it, lucri caufaⁱ. This reqquifite, befides excufing thofe who labour under incapacities of mind or will, (of whom we fpoke fufficiently at the entrance of this book^k ) indemnifies alfo mere trefpaffers, and other petty offenders. As if a fervant takes his mafter's horfe, without his knowlege, and brings him home again: if a neighbour takes another's plough, that is left in the field, and ufes it upon his own land, and then returns it: if, under colour of arrear of rent, where none is due, I diftrein another's cattel, or fiefe them: all thefe are mifdemefnors and trefpaffes, but no felonies^l . The rodinary difcovery of a felonious intent is where the party doth it clandefinely, or being charged with the facts, denies it. But this is by no means the only criterion of criminality: for in cafes that may amount to larciny the variety of circumftances is fo great, and the complications thereof fo mingled, that it is impoffible to recount all thofe, which may evidence a felonious intent, of animum furandi: wherefore they muft be left to the due and attentive confideration of the court and jury.

4. THIS felonious taking and carrying away muft be of the perfonal goods of another: for if they are things real, or favour of the realty, larciny at the common law cannot be committed of them. Lands, tenements, and hereditaments ( either corporeal or incorporeal) cannotin their nature be taken and carried away. And of things lidewife that adhere to the freehold, as corn, grafs, trees, and the like, or lead upon a houfe, no larciny could be committed by the rules or the common law; but the feverance of them was, and in many things is ftill, merely a trefpafs: which depended on a fubtilty in the legal notions of

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^h 1 Hawk. P. C. 93.
ⁱ Inft. 4. 1. 1.
^k See pag. 20.
^l 1 Hal. P. C. 509.
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our
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our anceftors. Thefe things were parcel of the real eftate; and therefore, while they continued fo, could not by any poffibility be the fubject of theft, being abfolutely fixed and immoveable^m. And if they were fevered by violence, fo as to be changed into moveables; and at the fame time, by one and the fame continued act, carried off by the perfon who fevered them; they could never be faid to be taken from the proprietor, in this their newly acquired ftate of mobility (which is effential to the nature of larciny) being never, as fuch, in the actual or conftructive poffeffion of any one, but of him who committed the trefpafs. He could not in ftrictnefs be faid to have taken what at that time were the perfonal goods of another, fince the very act of taking was what turned them into perfonal goods. But if the thief fevers them at one time, whereby the trefpafs ins completed, and they are converted into perfonal chattels, in the conftructive poffeffion of him on whofe foil they are left or laid; and comes again at another time, when they are fo turned into perfonalty, and takes them away; it is larciny: and fo it is, if the owner, or any one elfe, has fevered themⁿ . And now, by the ftatute 4 Geo II. c. 32. to fteal, or fever with intent to fteal, any lead or iron fixed to a houfe, or in any court or garden thereunto belonging, is made felony, liable to tranfportation for feven years: and to fteal underwood or hedges, and the like, to rob orchards or gardens of fruit growing therein, to fteal or otherwife deftroy any turnips or the roots of madder when growing, are by the ftatutes 43 Eliz. c. 7. 15 Car. II. c. 2. 23. Geo. II. c. 26. and 31 Geo. II. c. 35. punifhable criminally, by whipping, fmall fines, imprifonment, and fatisfaction to the party wronged, according to the nature of the offence. Moreover, the ftealing by night of any trees, or of any roots, fhrubs, or plants to the value of 5s, is by ftatute 6 Geo. III. c. 36. made felony in the principlas, aiders, and abettors, and in the purchafers thereof knowing the fame to be ftolen: and by ftatute 6 Geo. III. c. 48. the ftealig of any timber trees therein fpecified^o , and of any root,

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^m See Vol. II. pag. 16.
ⁿ 5 Inft. 109. 1 Hal. P. C. 510.
^o Oak, beech, chafnut, walnut, afh, elm, cedar, fir, afp, lime, fveaimore, and Birth.
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F f

fhrub,

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fhrub, or plant, by day or night, is liable to pecuniary penalties for the two firft offences, and for the third is conftituted a felony liable to tranfportation for feven years. Stealing are out of mines is alfo no larciny, upon the fame principle of abherence to the freehold; with an exception only to mines of black lead, the ftealing of are out of which is felony without benefit of clergy by ftatute 25 Geo. II. c. 10. Upon nearly the fame principle the ftealing of writings relating to a real eftate is no felony, but a trefpafs^p : becaufe they concern the land, or (according to our technical language) favour of the realty, and are confidered as part of it by the law; fo that they defcend to the heir together with the land which they concern^q .

BONDS, bills, and notes, which concern mere chofes in action, were alfo at the common law held not to be fuch goods whereof larciny might be committed; being of no intrinfic value^r , and not importing any property in the poffeffion of the perfon from whom they are taken. But by the ftatute 2 Geo. II. c. 25. they are now put upon the fame footing, with refpect to larcinies, as the money they were meant to fecure. And, by ftatute 7 Geo. III. c. 50. if any officer or fervant of the poft-office fhall fecrete, embezzle, or deftroy any letter or pacquet, containing any bank note or other valuable paper particularly fpecified in the act, or fhall fteal the fame out of any letter of pacquet, he fhall be guilty of felony without benefit of clergy. Or, if he fhall deftory any letter or pacquet with which he has received money for the poftage, or fhall advance the rate of poftage on any letter or pacquet fent by the poft, and fhall fecrete the money received by fuch advancement, he fhall be guilty of fingle felony. Larciny alfo could not at common law be committed of treafuretrove, or wreck, till feifed by the king or him who hath the franchife; for till fuch feifure no one hath a determinate property therein. But by ftatute 26 Geo. II. c. 19. plundering, or ftealing from, any fhip in diftrefs (whether wreck or no wreck)

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^p1 Hal. P. C. 510. Stra. 1137.
^q See Vol. II. pag. 438.
^r 8 Rep. 33.
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is felony without benefit of clergy: in like manner as, by the civil law^s , this inhumanity is alfo punifhed in the fame degree as the moft atrocious theft.

LARCINY also cannot be committed of fuch animals, in which there is no property either abfolute or qualified; as of beafts that are ferae naturae, and unreclaimed fuch as deer, hares, and conies, in a foreft, chafe, or warren; fifh in an open river or pond; or wild fowls at their natural liberty^t . But if they are reclaimed or confined, and may ferve for food, it is otherwife, even at common law: for of deer fo inclofed in a park that they may be taken at pleafure, fifh in a trunk, and pheafants or partridges in a mew, larciny may be committed^{u .} And now, by ftatute 9 Geo. I. c. 22. to kill or fteal any deer in a foreft, or other place, enclofed; to rob a warren; or to fteal fifh from a river or pond, being in this laft cafe armed and difguifed; thefe are felonies without benefit of clergy. And by ftatute 13 Car. II. c. 10. to fteal deer in any foreft, though uninclofed, is a forfeiture of 20l. for the firft offence, and by ftatute 10 Geo. II. c. 32. feven years tranfportation for the fecond offence: which punifhment is alfo inflicted for the fift offence upon fuch as come to hunt there armed with offenfive weapons. Alfo by ftatute 5 Geo. III. c. 14. the penalty of tranfportation for feven years is inflicted on perfons ftealing or taking fifh in any water within a park, paddock, orchard, or yard; and on the receivers, aiders, and abettors: and the like punifhment, or whipping, fine, or imprifonment, is provided for the taking or killing of conies^w in open warrens. And a forfeiture of five pounds to the owner of the fifhery is made payable by perfons taking or deftroying (or attempting fo to do) any fifh in any river or other water within any inclofed ground being private property. Stealing hawks, in difobedience to the rules prefcribed by the ftatute 37 Edw. III. c. 19. is alfo felony^x . It is alfo faid^y , that, if fwans

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^s Cab. 6. 2. 18.
^t 1 Hal. P. C. Foft. 336.
^u 1 Hawk. P. C. 94. 1. Hal. P. C. 511.
^w See ftat. 22 & 23 Car. II. c. 25.
^x 3 Inft. 98.
^y Dalt. Juft. C. 156.
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F f 2

be

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be lawfully marked, it is felony to fteal them, though at large in a public river; and that it is likewife felony to fteal them, though unmarked, if in any private river or pond: otherwife it is only a trefpafs. But, of all valuable domeftic animals, as horfes, and of all animals domitae naturae, which ferve for food, as fwine, fheep, poulty, and the like alrciny may be committed; and alfo of the flefh of fuch as are ferae naturae, when killed^z . As to thofe animals, which do not ferve for food, and which therefore the law holds to have no intrinfic value, as dogs of all forts, and other creatures kept for whim and pleafure, though a man may have a bafe property therein, and maintain a civil action for the lofs of them^a , yet they are not of fuch eftimation, as that the crime of ftealing them amounts to larciny^b .

NOTWITHSTANDING however that no larciny can be committed, unlefs there be fome property in the thing taken, and an owner; yet, if the owner be unknown, provided there be a property, it is larciny to fteal it; and an indictment will lie, for the goods of a perfon unknown^c . In like manner as, among the Romans, the lex Hoftilia de furtis provided, that a profecution for theft might be carried on without the intervention of a grave; which is the property of thofe, whoever they were, that buried the deceafed: but ftealing the corpfe itfelf, which has no owner, (though a matter of great indecency) is no felony, unlefs fome of the gravecloths be ftolen with it^e . Very different from the law of the Franks, which feems to have refpected both as equal offences; when it directed that a perfon, who had dug a corpfe out of the ground in order to ftrip it, fhould be banifhed from fociety, and no one fuffered to reflieve his wants, till the relations of the deceafed confented to his readmiffion^f .

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^z 1 Hal. P. C. 511.
^a See Vol. II. pag. 393.
^b 1 Hal. P. C. 512.
^c Ibid.
^d Gravin. L. 3. §. 106.
^e See Vol. II. pag. 429.
^f Montefq. Sp. L. b. 30. ch. 19.
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HAVING
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HAVING thus confidered the general nature of fimple larciny, I come next to treat of it's punifhment. Theft, by the Jewifh law, was only punifhed with a pecuniary fine, and fatisfaction to the party injured^g . And in the civil law, till fome very late conftitutions, we never find the punifhment capital. The late of Draco at Athens punifhed it with death: but his laws were faid to be written in blood; and Solon afterwards changed the penalty to a pecuniary mulct, And fo the Attic laws in general continued^h ; except that once, in a time of dearth, it was made capital to break into a garden, and fteal figs: but this law, and the informers againft the offence, grew fo odious, that from them all malicious informers were ftiled fycophants; a name, which we have much perverted from it's original meaning. From thefe examples, as well as the reafon of the ting, many learned and fcrupulous men have queftioned the propriety, if not lawfulnefs, of inflicting capital punifhment for fimple theftⁱ . And certainly the natural punifhment for injuries to property feems to be the lofs of the offender's own property: which ought to be univerfally the cafe, were all men's fortunes equal. But as thofe, who have no property themfelfes, are generally the moft ready to attack the property of others, it has been found neceffary inftead of a pecuniary to fubftitute a corporal punifhment: yet how far this corporal punifhment ought to extend, is what has occafioned the doubt. Sir Thomas More^j, and the marquis Beccaria^k , at the diftance of more than two centuries, have very fenfibly propofed that kind of corporal

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^g Exod. c. xxii.
^h Petit. LL. Attic. l. 7. tit. 5.
ⁱ Eft enim ad vindicanda furta nimis atrox, nec tamen ad refraenanda fufficiens: quippe neque furtum fimplex tam ingens facinus eft, ut capite debeat plecti; neque ulla poena eft tanta, nt ab latrociniis cohibeat eos, qui nullam aliam artem quaerendi victus babent. (Mori Utopia. Edit. Glafg. 1750. pag. 21.) – Denique, cum lex Mofaica, Quanquam inclemens et afpera, tamen pecunia furtum, haud motce, mulctavit; ne putemus Deum, in nova lege clementiae qua pater imperat filiis, majorem indulfiffe nobis invicem faeviendi licentiam. Haec funt cur non licere putem: quam vero fit abfurdum, atque etiam perniciofum reipublicae, furem atque homicideam ex aequo puniri, nemo eft (opinor) qui nefciat. (Ibid. 39.)
^j Utop. pag. 42.
^k ch. 22.
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punifh-
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punifhmen, which approaches the neareft to a pecuniary fatisfaction; viz. a temporary imprifonment, with an obligation to labour, firft for the party robbed, and afterwards for the public, in works of the moft flavifh kind: in order to oblige the offender to repair, by his induftry and diligence, the depredations he has committed upon private property and public order. But, notwithftanding all the remonftrances of fpeculative politicians and moralifts, the punifhment of theft ftill continues, throughout the greateft part of Europe, to be capital: and Puffendorf^l , together with fir Matthew Hale^m, are of opinion that this muft always be referred to the prudence of the legiflature; who are to judge, fay they, when crimes are become fo enormous as to require fuch fanguinary reftrictionsⁿ . Yet both thefe writers agree, that fuch punifhment fhould be cautioufly inflicted, and never without the utmoft neceffity.

OUR antient Saxon laws nominally punifhed theft with death, if above the value of twelvepence: but the criminal was permitted to redeem his life by a pecuniary ranfom; as, among their anceftors the Germans, by a ftated numer of cattle^o . But in the ninth year of Henry the firft, this power of redemption was taken away, and all perfons guilty of larciny above the value of twelvepence were directed to be hanged; which law continues in force to this day^p . For though the inferior fpecies of theft, or petit larciny, is only punifhed by whipping at common law^q , or by ftatute 4 Geo. I. c. 11. may be extended to tranfportation for feven years, yet the punifhment of grand larciny, or the ftealing above the value of twelvepence, (which fum was the ftandard in the time of king Athelftan, eight hundred years ago) is at common law regularly death. Which, confidering the great intermediate alteration in the price or denomination of money, is undoubtedly a very rigorous conftitution; and made fir Henry Spelman (above a century fince, when money was at twice it's

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^l L. of N. b. 8. c. 3.
^m 1 Hal. P. C. 13.
ⁿ See pag. 9.
^o Tac. de mor. Germ. c. 12.
^p 1 Hal. P. C. 12. 3 Inft. 53.
^q 3 Inft. 218.
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prefent rate) complain, that while every thing elfe was rifen in it's nominal value, and become dearer, the life of man had continually grown cheaper^r . It is true, that the mercy of juries will often make them ftrain a point, and bring in larciny to be under the value of twelvepence, when it is really of much greater value: but this is a kind of pious perjury, and does not at all excufe our common law in this refpect from the imputation of feverity, but rather ftrongly confeffes, the charge. It is likewife true, that by the merciful extenfions of the benefit of clergy by our modern ftature law, a perfon who commits a fimple larciny to the value of thirteen pence or thirteen hundred pounds, though guilty of a capital offence, fhall be excufed the pains of death: but this is only for the firft offence. And in many cafes of fimple larciny the benefit of clergy is taken away by ftatute: as from horfeftealing^s ; taking woollen cloth from off the tenters^t , or linen from the place of manufacture^v ; ftealing fheep or other cattle fpecified in the acts^{u ;} thefts on navigable rivers above the value of forty fhillings^w ; plundering veffels in diftrefs, or that have fuffered fhipwreck^x ; ftealing letters fent by the poft^y ; and alfo ftealing deer, hares, and conies under the peculiar circumftances mentioned in the Waltham black act^z . Which additional ferverity is owing to the great malice and mifchief of the theft in fome of thefe inftances; and, in others, to the difficulties men would otherwife lie under to preferve thofe goods, which are fo eafily carried off. Upon which laft principle the Roman law punifhed more feverely than other thieves the abigei, or ftealers of cattle^a ; and the balnearii, or fuch as ftole the cloaths of perfons who were wafhing in the public baths^b : both which conftitutions feem to be borrowed from the laws of Athens^c .
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r Gloff. 350.

x Stat. 12. Ann. ft. 2. c. 18. 26Geo. II. c. 19.

^s Stat. 1 Edw. VL. C. 12. 2. & 3. Edw. VI.        ^y Stat. 7. Geo. III. c. 50.

t Stat. 22 Car. II. c. 5.				z Stat. 9 Geo. I. c. 22.
v Stat. 18 Geo. II. c. 27.			a Ff. 47. t. 14.

^u Stat. 14 Geo. II. c. 6. 15 Geo. II. c. 34.        ^b Ibid. t. 17.

w Stat. 24 Geo. II. c. 45.

c Pott. Antiqu. b. 1. c. 26.

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And fo too the antient Goths punifhed with unrelenting feverity thefts of cattle, or of corn that was reaped and left in the field: fuck kind of property (which no human induftry can fufficiently guard) being efteemed under the peculiar cuftody of heaven^d . And thus much for the offence of fimple larciny.

MIXED, or compound larciny is fuch as has all the properties of the former, but is accompanied with one of, or both, the aggravations of a taking from one's houfc or perfon. Firft therefore of larciny from the houfe, and then of larciny from the perfon.

1. LARCINY from the houfe, though it feems (from the confiderations mentioned in the preceding chapter^e ) to have a higher degree of guilt than fimple larciny, yet is not at all diftinguifhed from the other at common law^f : unlefs where it is accompanied with the circumftance of breaking the houfe by night; and then we have feen that it falls under another defcription, viz. that of burglary. But now by feveral acts of paliament (the hiftory of which is very ingenioufly deduced by a learned modern wrier^g , who hath fhewn them to have gradually arifen from our improvements in trade and opulence) the benefit of clergy is taken from larcinies committed in an houfe in almoft every inftance^h . The multiplicity of which acts are apt to create fome confufion; but upon comparing them diligently we may collect, that the benefit of clergy is denied upon the following domeftic aggravations of larciny; viz. 1. In all larcinies above the value of twelvepence, from a church, or from a dwelling-houfe, or booth, any perfon being therein. 2. In all larcinies to the value of 5 s. committed by breaking the dwelling-houfe, though no perfon be therein. 3. In all larcinies to the value of 40 s. from a dwelling-houfe, or it's outhoufes, without breaking in, and whether any perfon be

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^d Stiernh. de jure Goth. l. 3. c. 5.
^e See pag. 223.
^f 1 Hawk. P. C. 98.
^g Barr. 375. & c.
^h Stat. 23 Hen. VIII. c. 1. 25. Hen. VIII. c. 3. 1 Edw. VI. c. 12. 5. & Edw. VI. c. 9. 10 & 11 W. III. c. 23. 12. Ann. c. 7.
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therein
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therein or no. 4 In all larcinies to the value of 5 s. from any fhop, warehoufeⁱ , coachhoufe, or ftable; whether the fame be broken open or not, and whether any perfon be therein or no. In all thefe cafes, whether happening by day or by night, the benefit of clergy is taken away from the offenders.

2. LARCINY from the perfon is either by privately ftealing; or by open and violent affault, which is ufually called robbery.

THE offence of privately ftealing from a man's perfon, as by picking his pocket or the like, without his knowlege, was debarred of the benefit of clergy, fo early as by the ftatute 8 Eliz. c. 14. But then it muft be fuch a larciny, as ftands in need of the benefit of clergy, viz. of above the value of twelvepence; elfe the offender fhall not have judgment of death. For the ftatute creates no new offence; but only takes away the benefit of clergy, which was a matter of grace, and leaves the thief to the regular judgment of the antient law^k . This feverity (for a moft fevere law it certainly is) feems to be owing to the eafe with which fuch offences are committed, and the difficulty of property, in the manual occupation or corporal poffeffion of the owner, which was an offence even in a ftate of nature. And therefore the faccularii, or cutpurfes, were more feverely punifhed than common thieves by the Roman and Athenian laws^l .

OPEN and violent larciny from the perfon, or robbery, the rapina of the civilians, is the felonious and forcible taking, from the perfon of another, of goods or money to any value, by putting him in fear^m . 1. There muft be a taking, otherwife it is no robbery. A mere attempt to rob was indeed held to be felony, fo late as Henry the fourth's timeⁿ : but afterwards it was taken to be only a mifdemefnor, and punifhable with fine and imprifon-

.{FS}
ⁱ See Fofter. 78, 79. Barr. 379.
^k 1 Hawk. P. C. 98.
^l Ff. 47. 11. 7. Pott. Antiqu. l. 1. c. 26.
^m 1 Hawk. P. C. 95.
ⁿ 1 Hal. P. C. 532.
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ment; till the ftatute 7 Geo. II. c. 21. which makes it a felony tranfportable for feven years. If the thief, having once taken a purfe, returns it, ftill it is a robbery: and fo it is whether the taking be ftrickly from the perfon of another, or in his prefence only; as where a robber by menaces and violence puts a man in fear, and drives away his fheep of his cattle before his face^o . 2. It is immaterial of what value the thing taken is: a penny as well as a pound, thus forcibly extorted, makes a robbery^p . 3. Laftly, the taking muft be by force, or a previous putting in fear; which makes the violation of the perfon more atrocious than privately ftealing. For if one privately fteals fixpence from the perfon of another, and afterwards keeps it by putting him in fear, this is no robbery, for the fear is fubfequent^r : neither is it capital, as privately ftealing, being under the value of twelvepence. Yet this putting in fear does not imply, that any great degree of terror or affright in the party robbed is neceffary to conftitute a robbery: it is fufficient that fo much force, or threatening by work or geftrue, be ufed, as might create an apprehenfion of danger, or oblige a man to part with his property without or againft his confent^s . Thus, if a man be knocked down without previous warning, and ftripped of his property while fenfelefs, though ftrictly he cannot be faid to be put in fear, yet this is undoubtedly a robbery. Or, if a perfon with a fword drawn begs an alms, and I give it him through miftruft and apprehenfion of violence, this is a felonious robbery^t . So if, under a pretence of fale, a man forcibly extorts money from another, neither fhall this fubterfuge avail him. But it is doubted^u , whether the forcing a higler, or other chapman, to fell his wares, and giving him the full value of them, amounts to fo heinous a crime as robbery.

.{FS}
^o 1 Hal. P. C. 533.
^p 1 Hawk. P. C. 97.
^q Ff. 4. 2. 14. §. 12.
^r 1 Hal. P. C. 534.
^s Foft. 128.
^t 1 Hawk. P. C. 96.
^u Ibid. 97.
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THIS fpecies of larciny is debarred of the benefit of clergy by ftatute 23 Hen. VIII. c. 1. and other fubfequent ftatutes; not indeed in general, but only when committed in or near the king's highway. A robbery therefore in a diftant field, or footpath, was not punifhed with death^w ; but was open to the benefit of clergy, till the ftatute 3 & 4 W. & M. c. 9. which takes away clergy from robbery wherefoever committed.

II. MALICIOUS mifchief, or damage, is the next fpecies of injury to private property, which the law confiders as a public crime. This is fuch as is done, not animo furandi, or with an intent of gaining by another's lofs; which is fome, though a weak, excufe: but either out of a fpirit of wanton cruelty, or black and diabolical revenge. In which it bears a near relation to the crime of arfon; for as that affects the habitation, fo this does the other property, of individuals. And therefore any damage arifing from this mifchievous difpofition, though only a trefpafs at common law, is now by a multitude of ftatutes made penal in the higheft degree. Of thefe I fhall extract the contents in order of time.

AND, firft, by ftatute 22 Hen. VIII. c. 11. perverfely and malicioufly to cut down or deftroy the powdike, in the fens of Norfolk and Ely, is felony. By ftatute 43 Eliz. c. 13. (for preventing rapine on the northern borders) to burn any barn or ftack of corn or grain; or to pery, or make fpoil, of the perfons or goods of the fubject upon deadly feud, in the four northern counties of Northumberland, Weftmorland, Cumberland, and Durham; or to give or take any money or contribution, there called blackmail, to fecure fuch goods from rapine; is felony without benefit of clergy. By ftatute 22 & 23 Car. II. c. 7. to burn any ricks or ftacks of corn, hay, or grain, barns, houfes, buildings, or kilns; or malicioufly, unlawfully, and willingly to kill any horfes, fheep, or other cattle, in the night time, is fe-

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^w 1 Hal. P. C. 535.

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lony; but the offender may make his election to be tranfported for feven years: and to main or hurt fuch cattle is a trefpafs, for which treble damages fhall be recovered. By ftatute 1 Ann. ft. 2. c. 9. captais and mariners belonging to fhips, and deftroying the fame, to the prejudice of the owners, (and by 4 Geo. I, c. 48. malicioufly to fet on fire any underwood, wood, or coppice, is made fingle felony. By ftatute 6 Geo. I. c. 23. the wilful and malicious traring, cutting, fpoiling, burning, or defacing of the garments or cloaths of any perfon paffing in the ftreets or highways, is felony. This was occafioned by the infolence of certain weavers and others; who, upon the introduction of fome Indian fafhions prejudicial to their own manufactures, made it their practice to caft aqua fortis in the ftreets upon fuch as wore them. By ftatute 9 Geo. I. c. 22. commonly called the Waltham black act, occafioned by the devaftations committed in Epping foreft, near Waltham inn Effex, by perfons in difguife or with their faces blacked; (who feem to have refembled the Roberdfmen, or followers of Robert Hood, that in the reign of Richard the firft committed great outrages on the borders of England and Scotland^x ;) by this black act, I fay, which has in part been mentioned under the feveral heads of riots, mayhem, and larciny, it is farther enacted, that unlawfully and malicioufly to fet fire to any houfe, barn, or outhoufe, or to any hovel, cock, mow, or ftack of corn, ftraw, hay, or wood; or to break down the head of any fifhpond, whereby the fifh fhall be loft; or to kill, maim, or wound any cattle; or to cut down, or deftroy, or platation, for ornament, fhelter, or profit; all thefe malicious acts are felonies without benefit of clergy: and the hundred fhall be chargeable for the damages, unlefs the offender be

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^x 3 Inft. 197.
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convicted. In like manner by the Roman law to cut down trees, and efpecially vines, was punifhed in the fame degree as robbery^y . By ftatutes 6 Geo. II. c. 37. and 10 Geo. II. c. 32. it is alfo made felony without the benefit of clergy, malicioufly to cut down any river of fea bank, whereby lands may be overflowed; or to cut any hop-binds growing in a plantation of hops, or wilfully and malicioufly to let fire to any mine or delph of coal. By ftatute 28 Geo. II. c. 19 to fet fire to any gofs, furze, or fern, growing in any foreft or chafe, is fubject to a fine of five pounds. And by ftatute 6 Geo. III. c. 36 & 48. wilfully to fpoil or deftroy any timber or other trees, roots, fhrubs, or plants, is for the two firft offences liable to pecuniary penalties; and for the third if in the day time, and even for the firft if at night, the offender fhall be guilty of felony, and liable to tranfportation for feven years. And thefe are the punifhments of malicious mifchief.

III. FORGERY, or the crimen falfi, is an offence, which was punifhed by the civil law with deportation or banifhment, and fometimes with death^z. It may with us be defined (at common law) to be, “the fraudulent making or alteration of a writing to the prejudice of another man's right:” for which the offender may fuffer fine, imprifonment, and pillory. And alfo by a variety of ftatutes, a more fevere punifhment is inflicted on the offender in many particular cafes, which are fo multiplied of late as almoft to become general. I fhall metion the principal inftances.

BY ftatute 5 Eliz. c. 14. 50 forge or make, or knowingly to publifh or give in evidence, any forged deed, court roll, or will, with intent to affect the right of real property, either freehold or copyhold, is punifhed by aforfeiture to the party grieved of double cofts and damages; by ftanding in the pillory, and having both his ears cut off, and his noftrils flit, and feared; by forfeiture to the crown of the profits of his lands, and by perpetual impri-

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^y Ff. 47. 7. 2.
^z Inft. 4. 18. 7.
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fonment. For any forgery relating to a term of years, or annuity, bond, obligation, acquittance, releafe, or difcharge of any debt or demand of any perfonal chattels, the fame forfeiture is given to the party grieved; and on the offender is inflicted the pillory, lofs of one of his ears, and half a year's imprifonment: the fecond offence in both cafes being felony without benefit of clergy.

BESIDES this general act, a multitude of others, fince the revolution, (when paper credit was firft eftablifhed) have inflicted capital punifhment on the forging or altering of bank bills or notes, or other fecurieties^a ; of bills of crefit iffued from the exchequer^b ; of fouth fea bonds, & c^c; of lottery orders^d ; of army or nany debenturese ; of Eaft India bonds^f ; of writings under feal of the London, or royal exchange, affurance^g; of a letter of attorney or other power to receive or transfer ftock or annuities, or for the perfonating a proprietor thereof, to receive or transfer fuch annuities, ftock, or dividents^h : to which ma be added, though not ftrickly reducible to this head, the counterfeiting of mediterranean paffes, under the hands of the lords of the admiralty, to protect one from the piratical ftates of barbaryⁱ; the forging or imitating any ftamps to defraud the ftamp office^k; and the forging any marriage regifter or licence^l : all which are by diftinct acts of parliament made felonies without benefit of clergy. And by ftatute 31 Geo. II. c. 32. forging or counterfeiting any ftamp or mark to denote the ftandard of gold and filver plate, and certain other offences of the like tendency, are made felony, but not without benefit of clergy.

.{FS}
^a Stat. 7 & 8 W. III. c. 31. 8 & 9. III. c. 20. 11 Geo. I. c. 9. 12 Geo. I. c. 32. 15 Geo. II. c. 13.
^b See the feveral acts for iffuing them.
^c Stat. 9 Ann. c. 21. 6 Geo. I. c. 4. & 11. 12 Geo. I. c. 32.
^d See the feveral acts for the lotteries.
^e Stat. 5. Geo. 1. c. 14. 9 Geo. I. c. 5.
^f Stat. 12 Geo. 1. c. 32.
^g Stat. 6. Geo. 1. c. 18.
^h Stat. 8 Geo. I. c. 22. 9 Geo. 1. c. 12.
ⁱ Stat. 4. Geo. II. c. 18.
^k See the feveral ftamp acts.
^l Stat. 26 Geo. 11 c. 33.
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THERE are alfo two other general laws, with regard to forgery; the one 2 Geo. II. c. 35. whereby the firft offence in forging or publifhing any forged deed, will, writing obligatory, bill of exchange, promiffory note, indorfement or affirgnment thereof, or any acquittance or receipt for money or goods, with intention to defraud any perfon, is made felony without benefit of clergy. And by ftatute 7 Geo. II. c. 22. it is equally penal to forge or utter a counterfeit acceptance of a bill of exchange, or the number of any accountable receipt for any note, bill, or any other fecurity for money; or any warrant or order for the payment of money, or delivery of goods. So that, I believe, through the number of thefe general and fpecial provifions, there is now hardly a cafe poffible to be conceived, wherein forgery, that tends to defraud, whether in the name of a real or fictitious perfon^m , is not made a capital crime.

THESE are the principal infringements of the rights of property; which were the laft fpecies of offences againft individuals or private fubjects, which the method of our diftribution has led us to confider. We have before examined the nature of all offences againft the public, or commonwealth; againft the king or fupreme magiftrate, the father and protector of that community; againft the univerfal law of all civilized nations; together with fome of the more atrocious offences, of publicly pernicious confequence, againft God and his holy religion. And thefe feveral heads comprehend the whole circle of crimes and mifdemefnors, with the punifhment annexed to each, that are cognizable by the laws of England.

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^m Foft. 116, & c.
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