the natural punishment for injuries to property seems to be the loss of the offender's own property; which ought to be universally the case, were all men's fortunes equal. But as those who have no property themselves, are generally the most ready to attack the property of others, it has been found necessary instead of a pecuniary to substitute a corpo- [238] ral punishment; yet how far this corporal punishment ought to extend, is what has occasioned the doubt. Sir Thomas More, (j) and the marquis Beccaria, (k) at the distance of more than two centuries from each other, have very sensibly proposed that kind of corporal punishment, which approaches the nearest to a pecuniary satisfaction; viz. a temporary imprisonment, with an obligation to labour, first for the party robbed, and afterwards for the public, in works of the most slavish kind; in order to oblige the offender to repair, by his industry and diligence, the depredations he has committed upon private property and public order. But notwithstanding all the remonstrances of speculative politicians and moralists, the punishment of theft still continues, throughout the greatest part of Europe, to be capital: and Puffendorf, (1) together with sir Matthew Hale, (m) are of opinion that this must always be referred to the prudence of the legislature who are to judge, say they, when crimes are become so enormous as to require such sanguinary restrictions. (n) Yet both these writers agree, that such punishment should be cautiously inflicted, and never without the utmost necessity. Our ancient Saxon laws nominally punished theft with death, if above the value of twelvepence: but the criminal was permitted to redeem his life by a pecuniary ransom; as, among their ancestors the Germans, by a stated number of cattle. (o) But in the ninth year of Henry the First, this power of redemption was taken away, and all persons 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 species of theft, or petit larciny, is only punished by imprisonment or whipping at com. mon law, (q) or by statute 4 Geo. I. c. 11. may be extended to transportation for seven years, as is also expressly directed in the case of the plate-glass company, (r) yet the punishment of grand larciny, or the stealing above the value of twelvepence (which sum was the standard in the time of king Athelstan, eight hundred years ago), is at com. [239] mon law regularly death. Which, considering the great intermediate alteration (s) in the price or denomination of money, is undoubtedly a very rigorous constitution; and made sir Henry Spelman (above a century since, when money was at twice its present rate) complain, that while every thing else was risen in its nominal value, and become dearer, the life of man had continually grown cheaper. (t) It is true, that the mercy of juries will often make them strain a point, and bring in larciny to be under the value of twelvepence, when it is really of much greater value: " j Utop. pag. 42. 1 L. of N. b. 8. c. 3. p 1 Hal. P. C. 12. m 1 Hal. P. C. 13. k Ch. 22. o Tac. de mor. Germ. c. 12. r Stat. 13 Geo. III. c. 38. 22 s In the reign of King Henry I. the stated value, at the exchequer, of a pasture-fed ox, was one shilling (Dial. de Scacc. l. 1. §7.). which, if we should even suppose to mean the solidus legalis mentioned by Lyndewode (Prov. 1. 3. c. 13. See Book II. pag. 509.), or the 72d part of a pound of gold, is only equal to 13s. 4d. of the present standard. t Gloss. 250. (21) And now by 5 Geo. IV. c. 84. s. 2. the offender may be transported beyond seas for life. Whipping females is abolished by 1 Geo. IV. c. 57. By the 53 Geo. III. c. 162. the offender may be imprisoned, with hard labour, either simply and alone, or in addition to any other sentence which by law may be imposed, but such imprisonment is not to be for longer than the time for which the party might be imprisoned, at the time of passing the act. (22) In a prosecution for a simple larceny in general, it is not very material to the prisoner, but this, though evidently justifiable and proper, when it only reduces the present nominal value of money to the ancient standard, (u) is otherwise a kind of pious perjury, and does not at all excuse our common law in this respect from the imputation of severity, but rather strongly confesses the charge. It is likewise true, that by the merciful extensions of the benefit of clergy by our modern statute law, a person who commits a simple larciny to the value of thirteen pence or thirteen hundred pounds, though guilty of a capital offence, shall be excused the pains of death; but this is only for the first offence. And in many cases of simple larciny the benefit of clergy is taken away by statute: as for horse-stealing in the principals, and accessories both before and after the fact; (w) theft by great and notorious thieves in Northumberland and Cumberland; (x) 24 taking [240] woollen cloth from off the tenters, (y) 25 or linens, fustians, calli 23 26 coes, or cotton goods, from the place of manufacture; (z) 2 (which extends, in the last case, to aiders, assisters, procurers, buyers, and receivers); feloniously driving away, or otherwise stealing one or more sheep or other cattle specified in the acts, or killing them with intent to steal the whole or any part of the carcase, (a) or aiding or assisting therein; " thefts on navigable rivers above the value of forty shillings, (b) or being present, aiding and assisting thereat; plundering vessels in distress, or that have suffered ship u 2 Inst. 189. 27 w Stat. 1 Edw. VI. c. 12. 2 & 3 Edw. VI. c. 33. 81 Eliz. c. 12. y Stat. 22 Car. II. c. 5. But, as it sometimes is difficult to prove the identity of the goods to stolen, the onus probandi with respect to innocence is now by statute 15 Geo. II. c. 27. thrown on the persons in whose custody such goods are found; the failure whereof is, for the first time, a misdemesnor punishable by the forfeiture of the treble value; for the second, by imprisonment also; and the third time it becomes a felony, punished with transportation for seven years. z Stat. 18 Geo. II. c. 27. Note, in the three last cases an option is given to the judge to transport the offender: for life in the first case, for seven years in the second, and for fourteen years in the third ;-in the first and third cases instead of sentence of death, in the second after sentence is given. a Stat. 14 Geo. II. c. 6. 15 Geo. II. c. 34. See Book I. pag. 88. b Stat. 24 Geo. II. c. 45. whether he is convicted of grand or petit larceny, as the court can transport for either. But upon a second conviction for grand larceny, he may be deprived of the benefit of clergy. (23) Foals and fillies are within the act. Russ. & R. C. C. 494. (24) By 1 Geo. IV. c. 116. clergy is restored. (25) The 4 Geo. IV. c. 53. restores the benefit of clergy, and if any person cut, steal, or carry away, any cloth or woollen manufactures, from the rack or tenters in the night, he, the offender, may be transported for life, or for not less than seven years, or imprisoned with or without hard labour for not exceeding seven years. The 1 Geo. IV. c. 116. repealed the 22 Car. II. c. 5. (26) By the 51 Geo. III. c. 41. s. 2. this act of 18 Geo. II. c. 27. s. 1. as far as regards the taking away benefit of clergy, is repealed. The 4 Geo. III. c. 37. s. 16. makes the breaking into any building, with intent to steal, cut, or destroy any linen, yarn, cloth, &c. felony without benefit of clergy; but now, by 4 Geo. IV. c. 56., the offender may be transported for life, or any term not less than seven years, or imprisoned and kept to hard labour for any term not exceeding seven years. In an indictment on the 18 Geo. II. c. 27., for stealing calico placed to be printed, &c. in a building made use of by a calico-printer, for printing, dying, &c. it was held, that in order to support the capital charge, it was necessary to prove that the building from which the calico was stolen was made use of either for printing or drying calico. Russ. & Ry. C. C. 53. If it appear on the trial that the yarn stolen had been taken up and thrown into heaps before it was carried into the house at the time it was stolen, it will not be within the protection of the statutes, and the prisoner can only be convicted of simple larceny. Rex v. Hugill at York. Chitty. (27) It has been held that cutting off part of a sheep whilst it is alive, with intent to steal it, will support an indictment for killing with intent to steal, if the cutting off must occasion the sheep's death. Russ. & Ry. C. C. 387. (28) By 4 Geo. IV. c. 53., benefit of clergy is restored, and offenders may be transported for life, or for not less than seven years, or imprisoned with or without labour for not exceeding seven years. Money has been holden not to be "goods, wares, or merchandise" within the meaning of the act, even though it be foreign coin which the royal proclamation has not made current. 1 Leach, 52, 3. And the property should be such as is usually deposited in ships or wharfs, and not attached to the person; for the same principle which governs the stealing in houses is equally applicable to places which this statute protects. Id. Ibid. 31 30 wreck ; (c) stealing letters sent by the post; (d) and also stealing deer, fish, hares, and conies under the peculiar circumstances mentioned in the Waltham black act. (e) Which additional severity is owing to the great malice and mischief of the theft in some of these instances; and, in others, the difficulties men would otherwise lie under to preserve those goods, which are so easily carried off. Upon which last principle the Roman law punished more severely than other thieves the abigei, or stealers of cattle; (f) and the balnearii, or such as stole the clothes of persons who were washing in the public baths; (g) both which constitutions seem to be borrowed from the laws of Athens. (h) And so too the ancient Goths punished with unrelenting severity thefts of cattle, or corn that was reaped and left in the field: such kind of property (which no human industry can sufficiently guard) being esteemed under the peculiar custody of heaven. (i) And thus much for the offence of simple larciny. Mixed or compound larciny is such as has all the properties of the former, but is accompanied with either one or both of the aggravations of a taking from one's house or person. First, therefore, of larciny from the house, and then of larciny from the person. 1. Larciny from the house, though it seems (from the considera. [241] tions mentioned in the preceding chapter) (j) to have a higher degree of guilt than simple larciny, yet it is not at all distinguished from the other at common law; (k) unless where it is accompanied with the circumstance of breaking the house by night; and then we have seen that it falls under another description, viz, that of burglary. But now by several acts of parliament (the history of which is very ingeniously deduced by a learned modern writer, (1) who hath shewn them to have gradually arisen from our improvements in trade and opulence), the benefit of clergy is taken from larcinies committed in an house in almost every instance; except that larciny of the stock or utensils of the plate-glass company from any of their houses, &c, is made only a single felony, and liable to transportation for seven years. (m) The multiplicity of the general acts is apt to create some confusion; but upon comparing them diligently we may collect, that the benefit of clergy is denied upon the following domestic aggravations of larciny; viz. Frst, in larcinies above the value of twelvepence, committed, 1. In a church or chapel, with or without violence, or breaking the same; (n)32 2. In a booth or tent in a market or fair, in the day-time or in the night, by violence or breaking the same; the owner or some of his family being therein (0) 3. By robbing a dwelling-house in the day-time (which robbing implies a breaking), any person being therein : (p) 4. In a dwellinghouse by day or by night, without breaking the same, any person being therein and put in fear; (g) which amounts in law to a robbery and in both these last cases the accessory before the fact is also excluded from : c St. 12 Ann. st. 2. c. 18. 26 Geo. II. c. 19. d Stat. 7 Geo. III. c. 50. j See pag. 223. k 1 Hawk. P. C. 98. n Stat. 23 Hen. VIII. c. 1. o Stat. 5 & 6 Ed. VI, c. 9. 1 Hal. P. C. 522. p Stat. 3 & 4 W. & M. c. 9. q Ibid. (29) See the 1 Geo. IV. c. 75. s. 15, &c. (30) See also the 52 Geo. III. c. 143. ; and the construction of the act, ante, 235. n. 12. (51) Clergy is restored by 4 Geo. IV. c. 54. See ante, 174. note. (S2) This provision is not confined to goods used for divine service. It extends to articles left in the church to keep it in repair. R. & R. C. C. 386. Accessories are not excluded from benefit of clergy, except the offence amount to burglary. 2 Hale, 365. his clergy. Secondly, in larcinies to the value of five shillings, committed, 1. By breaking any dwelling-house, or any out-house, shop, or warehouse thereunto belonging in the day-time, although no person be therein; (r) which also now extends to aiders abettors, and accessories before the 35 fact; (8) 2. By privately stealing goods, wares, or merchandise [242] in any shop, warehouse, (t) coach-house, or stable, by day or by night; though the same be not broken open, and though no person be therein; (u) which likewise extends to such as assist, hire, or command the offence to be committed. Lastly, in larcinies to the value of forty shillings in a dwelling-house, or its out-houses, although the same be not broken, and whether any person be therein or no; unless committed against their masters by apprentices under the age of fifteen. (v) This also extends to those, who aid or assist in the commission of any such offence.36 r Stat. 39 Eliz. c. 15. t See Foster, 78. Barr. 379. v Stat. 12 Ann. stat. 1. c. 4. (33) The value of the property taken must exceed twelve pence, as the act does not create a new felony, but takes away clergy from an old one, and there is no occasion to pray this benefit in cases of petit larceny. See 2 East P. C. 633, 4. It seems to be the better opinion, that some one within the house must be put in actual terror, and that not merely the constructive fear which in case of highway robbery is implied from danger. 11 Co. 37. b. 2 East P. C. 634, 5. However, this circumstance of putting in fear is not necessary, under this act, where there is a breaking for the clause," or shall rob any dwelling-house, in the day-time, any person being therein," is independent of the other, and makes no mention of alarm: it includes, however, the idea of breaking under the term rob, which always supposes violence. It is sufficient if the door of an inner room be broken to effect the theft, but the forcing a chest or fixed counter will not suffice, 1 Hale, 523, 6, 7, 8. Fost. 108. it must be such a breaking as would amount to burglary, if it were nocturnal. 1 Hale, 522. Chitty. : (34) See this offence commented on in 3 Chit. Crim. L. 2 ed. 940. (35) But by the 1 Geo. IV. c. 117. the benefit of clergy is restored if the property stolen be under 152. value; and if under 152. the offender, by sect. 2. may be transported for life, or not less than seven years, or be imprisoned, with or without hard labour, for not exceeding seven years: and by 4 Geo. IV. c. 53. the benefit of clergy is restored where the goods are of 152. value. Stealing money is not within the 10 & 11 W. III. c. 23. Fost. 79. Shops and warehouses, when they are used merely as repositories of goods, and not as places of sale, are not within the act, and consequently a prisoner cannot be convicted of privately stealing in a shop an article, which is not exposed there for sale, but which happens to be left there to be repaired, or for some other similar purpose. And with regard to coach-houses and stables, the articles must be such as are generally deposited there. Fost. 78. Leach, 43. 235. 248. 274. In prosecutions under this statute, it is held not to be privately stealing if any person whatever see or perceive the theft at the time it is committed. And where there are several shopmen employed in a shop, they must appear at the trial to prove they did not perceive the theft, or the judges will direct the jury to presume that the stealing was not done privately. No force whatever must be used to bring the case within the act. Fost. 79. 2 East P. C. 642. Christian. (36) To constitute the offence within this act, the party must steal to the whole amount of 40s. at one time. 1 Leach, 294. A dwelling-house within the meaning of this act must be such an one in which burglary may be committed, and not inhabited casually, as by a person who is placed there to sleep merely for the purpose of taking care of furniture till a tenant can be obtained. 2 East P. C. 499. Chambers in an inn of court fall, however, within the intention of the act. Cro. Car. 474. No man can be guilty under it by stealing in his own house, nor a woman in that of her husband. 1 Leach, 338. in notis. But a lodger who invites a man to his room, and then steals his goods to the value of 40s. when not about his person, is liable to be found guilty of stealing in a dwelling-house, Russ. & Ry. C. C. 418.; for the goods of a lodger's guest are under the protection of the dwelling-house. Russ. & Ry. C. C. 418. Property left by mistake at a house, and delivered to the occupier, under the supposition that it was for one of the persons in the house, is entitled to the protection of the house, so as to make the stealing of it, if of 408. value, by a lodger therein, under pretence that it is his, a capital offence, I Ry. & Moody C. C. 89. vide 2 Russ. 982, 3. sed vide 2 East P. C. 642.; but the act being intended to apply to property deposited in the house and under its protection, does not extend to effects taken from the person, though within it; and, therefore, where a lodger obtained a bank note from the mistress of the house under pretence of getting it changed, and absconded with it, (2 Leach, 564.) and where the defendant procured the prosecutor to part with money under other false pretences, (2 East P. C. 645, 6.) the offence was holden to be simple larceny. The stealing of a bank note is within this act, though that was not a valuable thing at the time it was passed, on the ground that the 2 Geo. II. c. 25. has placed these securities, in regard to larceny, on a footing with the money they profess to secure. 9 Leach, 693. Chitty. 2. Larciny from the person is either by privately stealing; or by open and violent assault, which is usually called robbery. The offence of privately stealing from a man's person, as by picking his pocket or the like, privily without his knowledge, was debarred of the benefit of clergy, so early as by the statute 8 Eliz. c. 4. But then it must be such a larciny as stands in need of the benefit of clergy, viz. of above the value of twelve-pence; or else the offender shall not have judgment of death. For the statute creates no new offence; but only prevents the the prisoner from praying the benefit of clergy, and leaves him to the regular judgment of the ancient law. (w) This severity (for a most severe law it certainly is) seems to be owing to the ease with which such offences are committed, the difficulty of guarding against them, and the boldness with which they were practised (even in the queen's court and presence) at the time when this statute was made: besides that this is an infringement of property, in the manual occupation or corporal possession of the owner, which was an offence even in a state of nature. And therefore the saccularii, or cutpurses, were more severely punished than common thieves by the Roman and Athenian laws. (x) 3 37 Open and violent larciny from the person, or robbery, the rapi- [243] na of the civilians, is the felonious and forcibly taking, from the person of another, of goods or money to any value, by violence or putting him in fear. (y) 1. There must be a taking, otherwise it is no robbery. A mere attempt to rob was indeed held to he felony, so late as Henry the Fourth's time; (z) but afterwards it was taken to be only a misdemeanor, and punishable with fine and imprisonment: till the statute 7 Geo. II. c. 21., which makes it a felony (transportable for seven years) unlawfully and maliciously to assault another with any offensive weapon or instrument ;— or by menaces, or by other forcible or violent manner, to demand any money or goods;-with a felonious intent to rob.38 If the thief, having once taken a purse, returns it, still it is a robbery; and so it is whether the taking be strictly from the person of another, or in his presence only; as, where a robber by menaces and violence puts a man in fear, and drives away his sheep or his cattle before his face. (a) But if the taking be not either directly from his person, or in his presence, it is no robbery. (b) 39 2. It is immaterial of what value the thing taken is: a penny as well as a pound w1 Hawk P. C. 98. The like observation will certainly hold in the cases of horse-stealing, (1 Hal. P. C. 531.) thefts in Northumberland and Cumberland, and stealing woollen cloth from the tenters; and possibly in such other cases where it is provided by any statute that simple larceny, under certain circumstances, shall be felony without benefit of clergy. x Ff. 47. 11. 7. Pott Antiq. 1. 1. c. 26. y 1 Hawk. P. C. 95. z 1 Hal. P. C. 532. a 1 Hal. P. C. 533. b Comyns, 478. Stra. 1015. (37) By 48 Geo. III. c. 129. the statute of Elizabeth is repealed, and enacts in its room, "that every person who shall, at any time, or in any place whatsoever, feloniously steal any money, goods, or chattels, from the person of any other, whether privily or without his knowledge or not, but without such force or putting in fear as is sufficient to constitute the crime of robbery, or who shall be present, aiding or abetting therein, shall be transported for seven years, or imprisoned for a term not exceeding three years." But this act does not, in any way, alter the crime of robbery; it merely lessens the punishment of a description of larceny which before was capital. 2 Leach. 1046. The 48 Geo. III. makes the principals in both degrees equally culpable. See R. & R. C. C. 174. Id. 321. 1 Leach, 7. 473. 266. To constitute a stealing from the person, the thing must be completely removed from the person; a removal from the place where it was, so as to constitute a simple larceny, and still remain attached by any means to the person, is not sufficient. 1 R. & M. C. C. 78. 4 Judges diss.; and see 2 East P. C. 555, 6, 7. Chitty. (38) The 7 Geo. II. c. 21. is now repealed by 4 Geo. IV. c. 54.; and see this offence considered more fully, ante, 217. n. (12). (39) Where it is one continuing transaction, though there be several asportations in law by several persons, yet all may be indicted as principals who concur in the felony before the final carrying away. 2 East P. C. 557. |