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field, and uses it upon his own land, and then returns it: if, under colour of arrear of rent, where none is due, I distrein another's cattle, or seize them all these are misdemesnors and trespasses, but no felonies. (1) The ordinary discovery of a felonious intent is where the party doth it clandestinely; or, being charged with the fact, denies it. But this is by no means the only criterion of criminality for in cases that may amount to larciny, the variety of circumstances is so great, and the complications thereof so mingled, that it is impossible to recount all those which may evidence a felonious intent, or animum furandi: wherefore they must be left to the due and attentive consideration of the court and jury.

4. This felonious taking and carrying away must be of the personal goods of another for if they are things real, or savour of the realty, larciny at the common law cannot be committed of them. Lamds, tenements, and hereditaments (either corporeal or incorporeal) cannot in their nature be taken and carried away. And of things likewise that adhere to the freehold. as corn, grass, trees, and the like, or lead upon a house, no larciny could be committed by the rules of the common law; but the severance of them was, and in many things is still, merely a trespass which depended on a subtilty in the legal notions of our ancestors. These things were parcel of the real estate; and therefore, while they continued so, could not by any

possibility be the subject of theft, being absolutely fixed and im[233] moveable. (m) And if they were severed by violence, so as to

be changed into moveables; and at the same time, by one and the same continued act, carried off by the person who severed them; they could never be said to be taken from the proprietor, in this their newly ac quired state of mobility (which is essential to the nature of larciny), being never, as such, in the actual or constructive possession of any one, but of him who committed the trespass. He could not in strictness be said to have taken what at that time were the personal goods of another, since the very act of taking was what turned them into personal goods. But if the thief severs them at one time, whereby the trespass is completed, and they are coverted into personal chattels, in the constructive possession of him on whose soil they are left or laid; and come again at another time, when they are so turned into personalty, and takes them away; it is larciny: and so it is, if the owner, or any one else, has severed them. (n) And now by the statute 4 Geo. II. c. 42. to steal, or rip, cut or break with intent to steal, any lead, or iron bar, rail, gate, or palisado, fixed to a dwelling-house or out-house, or in any court or garden thereunto belonging, to any other building, is made felony, liable to transportation for seven years; and to 11 Hal. P. C. 509. m See Book II. p. 16.

(6) See these points more fully, supra, note (5).

n 3 Inst. 109. 1 Hal. P. C. 510.

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(7) The 21 Geo III. c. 68. extends this provision to copper, brass, and bell metal; only giving the court authority to inflict imprisonment and hard labour from one year to three, and public whipping, not exceeding three times, instead of transportation, at their own pleasure. And see as to the offence of receiving, &c. stolen lead, &c. 29 Geo. II. c. 30. ante, 155. Stealing window sashes, 1 Leach, 201. 2 East. P. C. 590. n., or window casements made of iron, lead, and glass, I Leach. 496. 2 East P. C. 593., not within the acts, nor are leaden images, on a pedestal fixed in the ground near a summer-house, being in an enclosed field, (but not within the same enclosure at the house, R. & R. C. C. 28.) Iron rails on a tomb-stone, not connected by any building to a church, are not within the acts. 2 East. P. C. 593. A church has been holden to be a building within the meaning of these acts, 1 Leach, 318., and a summer-house used occasionally for tea and refreshments within the same inclosure as the house, though at the distance of about half a mile, is a building within the 4 Geo. II. c. 32. Indeed, all buildings appear to be within that act. R. & R. C. C. 69. If a person take a house for the express purpose of stripping it of the lead affixed to it, and he affect his design, he will be guilty of felony. 2 Leach, 950. If the defendant be found guilty of stealing lead to the value of ten-pence, he may have Judgment to be whipped, as for petit larceny. East. P. C. 594



steal, damage, or destroy underwood or hedges, and the like, to rob orchards or gardens of fruit growing therein, to steal or otherwise de. stroy any turnips, potatoes, cabbages, parsnips, pease, or carrots, or the roots of madder when growing, are (0) punished criminally, by whipping, small fines, imprisonment, and satisfaction to the party wronged, according to the nature of the offence. Moreover, the stealing by night of any trees, or of any roots, shrubs, or plants to the value of 5s. is by statute 6 Geo. III. c. 36. made felony in the principals, aiders, and abettors, and in the purchasors thereof, knowing the same to be stolen: and by statutes 6 Geo. III. c. 48. and 13 Geo. III. c. 33. the stealing of any timber trees therein specified, (p) and of any root, shrub, or plant, by day or night, is liable to pecuniary penalties for the two first offences, and [234] for the third is constituted a felony liable to transportation for seven years. Stealing ore out of mines is also no larciny, upon the same principle of adherence to the freehold; with an exception only to mines of black lead, the stealing of ore out of which, or entering the same with intent to steal, is felony, punishable with imprisonment and whipping, or transportation not exceeding seven years; and to escape from such imprisonment, or return from such transportation, is felony without benefit of clergy, by statute 25 Geo. II. c. 10. Upon nearly the same principle the stealing of writings relating to a real estate is no felony; but a trespass: (q) because they concern the land, or (according to our technical language) savour of the realty, and are considered as part of it by the law: so that they descend to the heir together with the land which they concern. (r) Bonds, bills, and notes, which concern mere choses in action, were also at the common law held not to be such goods whereof larciny might be committed; being of no intrinsic value; (8) and not importing any property in possession of the person from whom they are taken. But by the statute 2 Geo. II. c. 25. they are now put upon the same footing, with respect to larcinies, as the money they were meant to secure. By statute 15 Geo. II. c. 13. officers or servants of the bank of England, secreting or embezzling any note, bill, warrant, bond, deed, security, money, or effects intrusted with them or with the company, are guilty of felony without benefit of


o Stat. 43 Eliz. c. 7. 15 Car. II. c. 2. 31 Geo. II. c. 35. 6 Geo. III. c. 48. 9 Geo. III. c. 41. 13 Geo. lil. c. 32.

POak, beech, chesnut, walnut, ash, elm, cedar, fir, asp, lime, sycamore, birch, poplar, alder, larch, maple, and hornbeam. q 1 Hal. P. C. 510. Stra. 1137. r See Book II page 433. s 8 Rep. 33.

(8) Or may be fined any sum not exceeding twenty shillings, over and above the value of the goods, by 42 Geo. III. c. 67.; and that statute extends the offence to the taking of beans.

Now by statute 6 Geo. IV. c. 127. severing and at the same time taking away trees, fruit, vegetable productions, &c. from orchards, gardens, nursery-grounds, hot-houses, green-houses, or conservatories, is felony.

(9) Supra 233. note (3.)

(10) This act was made perpetual by 9 Geo. II. c. 18. When the notes of a country bank, having been paid by the correspondent in London, and therefore no longer valuable as securities, are sent to the country, in order to be re-issued, and are stolen during the journey, an indictment may be sustained to the value of the stamps and paper, which still might have been used by the owners. 2 Leach, 1036. R. & R. C. C. 181. S. C. But it is not felony under the statute, to steal bankers' notes which have been completely executed, but never put in circulation, because no money is due upon them, per Lord Ellenborough at Carlisle, 1802. id. in notes. But the circumstance of a promissory note not being indorsed, is not material to bring the offence within the act, 2 East P. C. 598.; and though the act mentions bank notes, &c. in the plural number, to steal a single note is felony, within its meaning. 1 Leach, 1. It is not an offence under the act to compel a man to write and sign a note on the paper, and with the ink of the defendant. 2 Leach, 673 (a.) 49 to stealing, &c. records, ante, 128. Chitty

clergy." The same is enacted by statute 24 Geo. II. c. 11. with respect to officers and servants of the south-sea company. And by statute 7 Geo. III. c. 50. if any officer or servant of the post-office shall secrete, embezzle, or destroy any letter or pacquet, containing any bank note or

other valuable paper particularly specified in the act, or shall steal [235] the same out of any letter or pacquet, he shall be guilty of felony without benefit of clergy. Or, if he shall destroy any letter or pacquet with which he has received money for the postage, or shall advance the rate of postage on any letter or pacquet sent by the post, and shall secrete the money received by such advancement, he shall be guilty of single felony.12 Larciny also could not at common law be committed of treasure-trove, or wreck, till seized by the king or him who hath the franchise, for till such seizure no one hath a determinate property therein. But, by statute 26 Geo. II. c. 19. plundering or stealing from any ship in distress (whether wreck or no wreck) is felony without benefit of clergy: in like manner, as, by the civil law, (s) this inhumanity is punished in the same degree as the most atrocious theft."

Larciny also cannot be committed of such animals, in which there is no property, either absolute or qualified; as of beasts that are ferae naturae, and unreclaimed, such as deer, hares, and conies in a forest, chase, or warren; fish, in an open river or pond: or wild fowls at their natural liberty. (t) But if they are reclaimed or confined, and may serve for food, it is otherwise even at common law for of deer so inclosed in a park that they may be taken at pleasure, fish in a trunk, and pheasants or partridges in a mew, larciny may be committed. (u) And now, by statute 9 Geo. I. e. 22. to hunt, wound, kill, or steal any deer; to rob a warren; or to steal fish from a river or pond (being in these cases armed and disguised); also to hunt, wound, kill, or steal any deer, in the king's forests or chases inclosed, or in any other inclosed place where deer have been usually kept; or by gift or promise of reward to procure any person to join them in such unlawful act; all these are felonies without benefit of clergy.15 And


s Cod. 6. 2. 13. t1 Hal. P. C. 511. Fost. 566. u 1 Hawk. P. C. 94, 1 Hal. P. C. 511.

(11) See the offence more fully considered under note (1.), ante, 220.; it is more properly placed under that head as the essence of the offence relates more to the person taking, and mode of taking, than to the thing taken.

(12) The offence as to servants, &c in post-office, embezzling letters, &c. has been already considered, and with more propriety than it would have been in this place, for the reason assigned in note (11) supra. With respect to other persons, the 2d section of the 7 Geo. III. c. 50. and the 52 Geo. III. c. 143. render it felony without benefit of clergy to steal letters, &c. from any mail, &c. In the construction of the foriner act, it has been holden, that if a man procure bags of letters to be delivered to him under pretence of being the guard to the mail, which are let down to him from a window of the post-office, this will be a stealing from the post-office within its meaning. 2 East P. C. GOS. But the act does not extend to servants employed in the postoffice, and into whose hands letters may lawfully come, if they embezzle and detain them, 2 Leach, 904.; nor does it apply where the party obtains the letters, not for the purpose of detaining them, but of receiving and embezzling the postage. 1 Leach, 81. 83. in notis. Under the 52 Geo. III. c. 143. it is not necessary that the person from whom the letters were stolen should have been in actual possession of them at the time of the theft; and where the horse mail-bags being left by the rider, after he had taken possession of them, for a temporary purpose for two minutes, were stolen during his absence, the case was held within the section of the act, 2 Stark. N. P. C. 485.; and a person may be indicted and committed under this section of the act, for stealing a letter, though he has an employment in the post-office, R. & R. C. C. 32. Chitty.


(13) See also the 1 & 2 Geo. IV. c. 75. s. 15. for the further protection of wrecks, and property swept overboard, &c.

(14) This offence is considered fully, ante, 174 when treating of the offence of killing game. (15) Clergy is in this case restored by the & Geo. IV. c. 54., and offender may be transported for seven years, or imprisoned, with or without hard labour, for not exceeding three years.

the statute 16 Geo. III. c. 30. enacts that every unauthorized person, his aiders and abettors, who shall course, hunt, shoot at, or otherwise attempt to kill, wound, or destroy any red or fallow deer in any forest, chase, purlieu, or ancient walk, or in any inclosed park, paddock, wood, or other ground, where deer are usually kept, shall forfeit the sum of [236] 201., or for every deer actually killed, wounded, destroyed, taken in any toyl or snare, or carried away, the sum of 301., or double those sums in case the offender be a keeper and upon a second offence (whether of the same or a different species), shall be guilty of felony, and transportable for seven years. Which latter punishment is likewise inflicted on all persons armed with offensive weapons, who shall come into such places with an intent to commit any of the said offences, and shall there unlawfully beat or wound any of the keepers in the execution of their offices, or shall attempt to rescue any person from their custody." Also by statute 5 Geo. III. c. 14. the penalty of transportation for seven years is inflicted on persons stealing or taking fish in any water within a park, paddock, garden, orchard, or yard and on the receivers, aiders, and abettors: and the like punishment, or whipping, fine, or imprisonment, is provided for the tak ing or killing of conies (v) by night in open warrens and a forfeiture of five pounds to the owner of the fishery, is made payable by persons taking or destroying (or attempting so to do) any fish in any river or other water within any inclosed ground, being private property. Stealing hawks, in disobedience to the rules prescribed by the statute 37 Edw. III. c. 19., is also felony. (w) It is also said (x) that, if swans be lawfully marked, it is felony to steal them, though at large in a public river; and that it is likewise felony to steal them, though unmarked, if in any private river or pond; otherwise it is only a trespass. But of all valuable domestic animals, as horses and other beasts of draught, and of all animals domitiae naturae, which serve for food, as neat or other cattle, swine, poultry, and the like, and of their fruit or produce, taken from them while living, as milk or wool, (y) larciny may be committed; and also of the flesh of such as are either domitiae or ferae naturae, when killed. (z) As to those animals, which do not serve for food, and which therefore the law holds to have no intrinsic value, as dogs of all sorts, and other creatures kept for whim and pleasure, though a man may have a base property therein, and maintain a civil action for the loss of them, (a) yet they are not of such estimation, as

.w 3 Inst. 98.

v See stat, 22 & 23 Car. II. c. 25. ⚫x Dalt. Just. c. 156. y Dal. 21. Crompt. 36. 1 Hawk. P. C. 93. 1 Hal. P. C. 507. The King v. Martin, by all the judges. P. 17 Geo. III. z 1 Hal. P. C. 511. a See Book II, pag. 395.

(16) See the 42 Geo. III. c. 107., and this offence more fully considered, ante, 174. (17) Under this act, the defendant must be indicted within six calendar months after the offence is committed, and the trial must be had before the justices of gaol delivery for the county in which the enclosure is situate. In an indictment on this act for entering an enclosed park, and taking fish bred, kept, and preserved there, in the river Kent, running through the park, it appeared that the park was walled round, except where the river entered and passed out, and that there were fences to keep in the deer; that there was nothing to keep in the fish; that they were not known to breed there; that nothing was done to stock the river, but that persons were never suffered to angle in the park without leave: it was held, that this was not a place where fish were to be considered as "bred, kept, or preserved," within the meaning of this act, and therefore the conviction was wrong. Russ. & Ry. C. C. 205. A stream of water running by the side of a piece of ground, which is enclosed on every side except that on which it is bounded by the water, is not a stream of enclosed ground within the meaning of the third section of the act, so as to subject a party fishing therein to the penalty inflicted by that act; the fishing should be in enclosed grounds, which shall be private property. 5 Taunt. 441. 1 Marsh. 127. S. C. 2 Bing. 483.

The stealing of oysters is provided against by the 31 Geo. III. c. 51. and 48 Geo. III. c. 144. Chitty.



that the crime of stealing them amounts to larciny. (b) 18 But by statute 10 Geo. HI. c. 18. very high pecuniary penalties, or a long imprisonment, and whipping in the stead, may be inflicted by two justices of the peace (with a very extraordinary mode of appeal to the quarter sessions), on such as steal, or knowingly harbour a stolen dog, or have in their custody the skin of a dog that has been stolen. (c) 19

Notwithstanding however that no larciny can be committed, unless there be some property in the thing taken, and an owner; yet, if the owner be unknown, provided there be a property, it is larciny to steal it; and an indictment will lie, for the goods of a person unknown. (d) In like manner as among the Romans, the lex Hostilia de furtis provided that a prosecution for theft might be carried on without the intervention of the owner. (e) This is the case of stealing a shroud out of a grave; which is the property of those, whoever they were, that buried the deceased: but stealing the corpse itself, which has no owner (though a matter of great indecency), is no felony, unless some of the grave-clothes be stolen with [237] it. (f) Very different from the law of the Franks, which seems to have respected both as equal offences: when it directed that a person, who had dug a corpse out of the ground in order to strip it, should be banished from society, and no one suffered to relieve his wants, till the relations of the deceased consented to his re-admission. (g)


Having thus considered the general nature of simple larciny, I come next to treat of its punishment. Theft, by the Jewish law, was only punished with a pecuniary fine, and satisfaction to the party injured. (h) And in the civil law, till some very late constitutions, we never find the punishment capital. The laws of Draco at Athens punished it with death: but his laws were said to be written in blood; and Solon afterwards changed the penalty to a pecuniary mulct. And so the Attic laws in general continued; (i) except that once, in a time of dearth, it was made capital to break into a garden, and steal figs: but this law, and the informers against the offence, grew so odious, that from them all malicious informers were styled sycophants; a name which we have much perverted from its original meaning. From these examples, as well as the reason of the thing, many learned and scrupulous men have questioned the propriety, if not lawfulness, of inflicting capital punishment for simple theft. (j) ́ ́And certainly


bi Hal. P. C. 512.

c See the remarks in pag. 4. The statute hath now continued eighteen sessions of parliament unrepeald'1 Hal. P. C. 512. e Gravin, l. 3. § 106. g Montesq. Sp. L. b. 30. ch. 19. h Exod. c. xxii. i Petit. LL. Attic. I. 7. tit. 5.

f See Book II. pag. 429. jEst enim ad vindicanda furta nimis atrox, nec tamen ad refraenanda sufficiens; quippe neque furtum simplex tam ingens facinus est, ut eapite debeat plecti; neque ulla poena est tanta, ut ab latrociniis cohibeat eos, qui nullam aliam artem quaerendi victus habent. (Mori Utopia. edit. Glasg. 1750. pag. 21)-Denique, cum lex Mosaica, quanquam inclemens et aspera, tamen pecunia furtam, haud morte, mulctavit ; ne putemus Deum, in nova lege clementiae qua pater imperat filiis majorem indusisse nobis invicem saeviendi licentiam. Haec sunt cur non licere putem; quam vero sit absurdum, atque etiam perniciosum reipublicae, furem atque homicidam ex aequo puniri, nemo est (opinor) qui nesciat. (Ibid. 39.)

(18) Ferrets, though tame and saleable, are not the subject of larceny, Russ. & R. C. C. 350. ; but a stock of bees is. T. Raym. 33.

As to the punishment for horse-stealing, sheep-stealing, &c. see post, 238.

(19) This statute scarcely deserves the censure conveyed in the learned judge's note; for though many persons may not estimate at a high rate the intrinsic value of this kind of property, yet dogs are frequently the favourites of their owners, and few thieves who are guilty of stealing dogs would confine their depredations to this single article. The penalty for the first offence is only from 201. to 302., and if paid, no farther punishment can be inflicted. Dr. Burn seems to have suggested a very idle doubt, whether a man under this statute can be convicted for stealing a bitch, as the word dog alone is used throughout the statute (tit. dogs). When it is necessary to distinguish the sexes, we are obliged to resort to the word bitch, but we have no other word than dogs to comprise the whole canine species of both sexes, in which sense it unquestionably was used by the legislature in this statute.-Christian's note.

(20) Ante, 65, n. (25).

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