thus forcibly extorted, makes a robbery. (c) 3. Lastly, the taking must be by force, or a previous putting in fear; which makes the violation of the person more atrocious than privately stealing. For, according to the maxim of the civil law, (d)“ qui vi rapuit, fur improbior esse videtur." This previous violence, or putting in fear, is the criterion that distinguishes robbery from other larcinies. For if one privately steals sixpence from the person of another, and afterwards keeps it by putting him in fear, this is no robbery, for the fear is subsequent : (e) neither is it capital, as privately stealing, being under the value of twelve-pence. Not that it is indeed necessary, though usual, to lay in the indictment that the robbery was committed by putting in fear; it is sufficient, if laid to be done by violence. (f) And when it is laid to be done by putting in fear, this does not imply any

degree of terror or affright in the party robbed: it is enough that so [244] much force, or threatening by word or gesture, be used, as might

create an apprehension of danger, or induce a man to part with his property without or against his consent. (g) Thus, if a man be knocked down without previous warning, and stripped of his property while senseless, though strictly he cannot be said to be put in fear, yet this is undoubtedly a robbery. Or, if a person with a sword drawn begs an alms, and I give it him through mistrust and apprehension of violence, this is a felonious robbery. (h) So if, under a pretence of sale, a man forcibly extorts money from another, neither shall this subterfuge avail him. But it is doubted, (i) whether the forcing a higler, or other chapman, to sell his wares, and giving him the full value of them, amounts to so heinous a crime as robbery."

c 1 Hawk. P. C. 97.
f Trin. 3 Ana. by all the judges.

d Ff. 4. 2. 14. § 12.
g Fost. 128.

e 1 Hal. P. C. 534. h 1 Hawk. P. C. 96.

i Ibid. 97.

(40) And see R. & R. C. C. 146. 1 Leach, 139. 193. 278. 3 Chit. C. L. 803. Mr. Justice Ashurst says, "The true definition of robbery is the stealing or taking from the person of another; or in the presence of another, property of any amount, with such a degree of force or terror, as to induce the party unwillingly to part with his property; and whether terror arises from real or expected violence to the person, or from a sense of injury to the character, makes no kind of difference; for to most men the idea of losing their fame and reputation, is equally, if not more, terrific than the dread of personal injury. The principal ingredient in robbery is a man's being forced to part with his property; and the judges are unanimously of opinion, that, upon the principles of law, as well as the authority of former decisions, a threat to accuse a man of the greatest of all crimes, is a sufficient force to constitute the crime of robbery by putting in fear." Leach, 280. And fear of loss of character and service upon a charge of sodomitical practices is sufficient to constitute robbery, though the party has no fear of being taken into custody, or of punishment. R. & R. C. C. 375. But if no actual force was used, and at the time of parting with the money, the party were under no apprehensions, but gave it merely for the purpose of bringing the offenders to justice, they cannot be capitally convicted, though we have seen it is otherwise, where personal violence is employed. 1 East P. C. 734. R. & R. C. C. 408. And the influence exercised over the mind, where the force is merely constructive, must be of such a kind as to disenable the prosecutor to take resistance. 2 Leach, 721. 6 East, 126. So that a threat to take an innocent person before a magistrate, and thence to prison, without charging him with any specific crime, is not sufficient to make the party a robber, if he obtain money to induce him to forbear. 2 Leach, 721. Indeed it has been said that the only instance in which a threat will supply the place of force, is an accusation of unnatural practices. 2 Leach, 730, 1. 1 Leach, 139. 2 Russ. 1009. And, it has recently been held, contrary, it seems, to the principle of some former decisions, that even in this case, the money must be taken immediately on the threat, and not after time has been allowed to the prosecutor to deliberate and advise with friends, as to the best course to be pursued, 1 East P. C. Append. xxi.; though, as some of the judges dissented, it does not seem to be decisive. Where, on the other hand, there is an immediate threat of injury to the property, as by pulling down a house with a mob in time of riots, which produces great alarm, and induces a man to part with his money, this has been holden to be a sufficient putting in fear to constitute robbery. 2 East P. C. 729. 731. And if a man assaults a woman with intent to commit a rape, and she, in order to prevail on him to desist, offers him money which he takes, but continues his endeavours, till prevented by the approach of a third person, he will be guilty of robbery, though his original intent was to ravish. i-East P. C. 711. If thieves meet a person, and by menaces of death, make him swear to bring

This species of larciny is debarred of the benefit of clergy by statute 23 Hen. VIII. c. 1., and other subsequent statutes, not indeed in general, but only when committed in a dwelling-house, or in or near the king's highway. A robbery therefore in a distant field, or footpath, was not punished with death; (k) but was open to the benefit of clergy, till the statute 3 & 4 W. & M. c. 9., which takes away clergy from both principals and accessories before the fact, in robbery, wheresoever committed.

II. Malicious mischief, or damage, is the next species of injury to private property, which the law considers as a public crime. This is such as is done, not animo furandi, or with an intent of gaining by another's loss which is some, though a weak, excuse: but either out of a spirit of wanton cruelty, or black and diabolical revenge. In which it bears a near relation to the crime of arson; for as that affects the habitation, so this does the other property, of individuals. And therefore any damage aris. ing from this mischievous disposition, though only a trespass at [245] common law, is now by a multitude of statutes made penal in the highest degree. Of these I shall extract the contents in order of time.

And, first, by statute 22 Hen. VIII. c. 11. perversely and maliciously to cut down or destroy the powdike, in the fens of Norfolk and Ely, is felony." And in like manner it is, by many special statutes, enacted upon the occasions, made felony to destroy the several sea-banks, river-banks, public navigations, and bridges, erected by virtue of those acts of parlia ment. But statute 43 Eliz. c. 13. (for preventing rapine on the northern

k 1 Hal. P. C. 535.

them money, and he, under the continuing influence of fear for his life, complies, this is robbery in them, though it would not be so, if he had no personal fear, and acted merely from a superstitious regard to an oath so extorted. 1 East P. C. 714. In the absence of force, to constitute robbery the fear must arise before and at the time of the property being taken, it is not enough that it arise afterwards; and where the prisoner by stealth took some money out of the prosecutor's pocket, who turned round, saw the prisoner, and demanded the money, but the prisoner threatening him, he desisted through fear from making any farther demand, it was held no robbe ry. Roll. Rep. 154. 1 Hale, 534.

To constitute a robbery, where an actual violence is relied on, and no putting in fear can be expressly shewn, there must be a struggle, or at least a personal outrage. So that to snatch property suddenly from the hand, to seize a parcel carried on the head, to carry away a hat and wig without force, and to take an umbrella of a sudden, have been respectively holden to be mere larcenies. 1 Leach, 290, 1. and in notes. But where a man snatched at the sword of a gentleman banging at his side, and the latter, perceiving the design, laid hold on the scabbard on which a contest ensued, and the thief succeeded in wresting the weapon from its owner, his offence was holden to be robbery. Id. ibid. Snatching an article from a man will constitute robbery if it is attached to his person or clothes so as to afford resistance; and therefore, where the prosecutor's watch was fastened to a steel chain which went round his neck, and the seal and chain hung from his fob, and the prisoner laid hold of the seal and chain and pulled the watch from the fob, but the steel chain still secured it, and by two jerks the prisoner broke the steel chain, and made off with the watch, it was held a robbery, for the prisoner did not get the watch at once, but had to overcome the resistance the steel chain made, and actual force was used for that purpose. R. & R. C. C. 419. And where a heavy diamond pin, with a corkscrew stalk, which was twisted and strongly fastened in a lady's hair, was snatched out, and part of the hair torn away, the judges came to a similar decision. 1 Leach, 335. The case of the man who tore an ear-ring from the ear, and in so doing lacerated the flesh, serves also to confirm this positione 1 Leach, 320. Nor will it excuse the violence that it was done under pretence of law; for where a bailiff handcuffed a prisoner and used her with great cruelty, for the purpose of extorting money from her, he was holden to be guilty as were also a number of men for seizing a waggon under pretence that there was no permit, when none was in reality necessary. 1 Leach, 280. 1 East Chitty.

P. C. 709.

(41) By 15 Car. II. c. 17. § 13. inaliciously to cut down or to destroy any works for conveying the waters of the great Bedford level, is subject to the same punishment.

(42) As to the offence of destroying locks, sluices, flood-gates, turnpike-gates, &c. see ante, 14,5. By the 1 Geo. IV. c. 115. & id. c. 116. benefit of clergy is restored as to these offen

ces.

There are various acts for the protection of particular canals, works, and enclosures, &c. fropa

13

borders) to burn any barn or stack of corn or grain; or to imprison or carry away any subject, in order to ransom him, or to make prey or spoil of his person or goods upon deadly feud or otherwise, in the four northern counties of Northumberland, Westmoreland, Cumberland, and Durham, or being accessory before the fact to such carrying away or imprisonment; or to give or take any money or contribution, there called blackmail, to secure such goods from rapine; is felony without benefit of clergy. By statute 22 & 23 Car. II. c. 7. maliciously, unlawfully, and willingly, in the night-time, to burn, or cause to be burnt or destroyed, any ricks or stacks of corn, hay, or grain, barns, houses, buildings, or kilns; or to kill any horses, sheep, or other cattle, is felony; but the offender may make his election to be transported for seven years; and to maim or hurt such horses, sheep, or other cattle, is a trespass for which treble damages shall be recovered. By statute 4 & 5 W. & M. c. 23. to burn on any waste, between Candlemas and Midsummer, any grig, ling, heath, furze, goss, or fern, is punishable with whipping and confinement in the house of correction. By statute 1 Ann. st. 2. c. 9. captains and mariners belonging to ships, and destroying the same, to the prejudice of the owners, (and by 4 Geo. I. c. 12. to the prejudice of insurers also,) are guilty of felony without benefit of clergy." And by statute 12 Ann. st. 2. c. 18. making any hole in a ship in distress, or stealing her pumps, or aiding or abetting such offence, or wilfully doing any thing tending to the immediate loss of such ships, is felony without benefit of clergy. By statute 1 Geo. [246] I. c. 48. maliciously to set on fire any underwood, wood, or cop

43

45

pice, is made single felony. By statute 6 Geo. I. c. 23. the wilful and malicious tearing, cutting, spoiling, burning, or defacing of the garments or clothes of any person passing in the streets or highways, with intent so to do, is felony. This was occasioned by the insolence of weavers and others; who, upon the introduction of some Indian fashions. prejudicial to their own manufactures, made it their practice to deface them either by open outrage, or by privily cutting, or casting aqua fortis in the streets upon such as wore them.46 By statute 9 Geo. I. c. 22. cominonly called the Waltham black act, occasioned by the devastations committed near Waltham in Hampshire, by persons in disguise or with their faces blacked (who seem to have resembled the Roberdsmen, or followers of Robert Hood, that in the reign of Richard the First committed great outrages on the borders of England and Scotland); (7) by this black act, I say, which has in part been mentioned under the several heads of riots,

13 Inst. 197.

malicious injuries, adjudging the oflenders to be fined, imprisoned, or transported. By the general enclosure act, 41 Geo. III. c. 109. wilfully to destroy, damage, or carry away any fence, stile, post, rail, gate, bridge, or tunnel, erected for the purposes of any enclosure act, is subject to 51. penalty.

(43) See this offence more fully considered, post, 246. n. (49).

(44) By 43 Geo. III. c. 113. the provisions in 4 Geo. I. c. 12. and 11 Geo. I. c. 29. to prevent the fraudulent burning or destroying ships, are repealed; and it is enacted, that if any person shall cast away, burn, or destroy any ship, or shall counsel or direct the same to be done, with intent to defraud the insurers, he shall be guilty of felony without benefit of clergy. Sect. 2. If the crime is committed within a county, it may be tried there; if upon the high scas, it may be tried according to the statute 28 Hen. VIII. relating to pirates. Sect. S.

(45) By the 1 & 2 Geo. IV. c 75. s. 11. injuring or concealing, &c. buoys, buoy ropes, or marks belonging to any anchor or cable is a felony, punishable with transportation for not more than seven years, or imprisonment for any time.

As to destroying the king's shipping or stores, see ante, 101. As to the offence of seamen riotously, &c. preventing the loading of vessels, see the 33 Geo. III. c. 67. (made perpetual by 41 Geo. III. U. K.) c. 19. 8. 1.

(46) See this offence considered more fally, ante. 217. n. (13).

47

menaces, mayhem, and larciny, (m) it is farther enacted, that to set fire to any house, barn, or out-house (which is extended by statute 9 Geo. III. c. 29. to the malicious and wilful burning or setting fire to all kinds of mills), or to any hovel, cock, mow, or stack of corn, straw, hay, or wood; or unlawfully and maliciously to break down the head of any fish pond, whereby the fish shall be lost or destroyed; 48 or in like manner to kill, maim, or wound any cattle; or cut down or destroy any trees planted in an avenue, or growing in a garden, orchard, or plantation, for ornament, shelter, or profit ; 50 all these malicious acts, or procuring by gift or promise of re. ward any person to join them therein, are felonies without benefit of cler

49

m See page 144, 202. 235. 240.

(47) To constitute an offence of this nature the act of setting fire must be done maliciously, 2 Bla. Rep. 843.; but it is not necessary that the malice should be against the real owner. Russ. & R. C. C. 26. sed quære; see 3 B. & C. 248. Russ. & R. C. C. 490. 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 it. 3 East, 460. The setting fire to a parcel of corn is not felony; it must be a "cock, mow, or stack." A stable with a room over it, connected with the principal mansion by fences, is an out-house, within the act, though for some purposes it is part of the dwelling, 2 East P. C. 1021.; so is a building within the curtilage (as a school room). Rass. & Ry. C. C. 295. 1 Burn J. 24th edit. 520. S. C. And a common gaol is within the act, especially if a house adjoins, for the residence of the keeper. 1 Leach, 69 2 Bla Rep. 682. 2 East P. C. 1020. The property need not be entirely burnt and consumed. Russ. & R ̊C. C. 26.

As to the offence of arson in general, see ante, 221 to 223.

(48) The benefit of clergy is restored as to this offence by 4 Geo. IV. c. 54. s. 1. and offenders may be transported for seven years, or imprisoned, with or without hard labour, for not more than three years. To constitute an offence against this provision of the black act, the defendant must be actuated by malice against the owner; for if the intent was to steal the fish, the offence will be capital. 2 East. P. C. 1067. 1072 1074. 1 Leach, 527 539. Russ. & Ry. C. C. 10. S. C. Id. 373. Malice against a mere servant or relative is not sufficient, Russ. & Ry. C. C. 490. ; and the malice must be direct to the owner. 3 B. & C. 248. And it seems the act only applies to cases of wanton and malicious mischief. Russ. & Ry. C. C. 10. 2 East P. C. 1067, 1072. 1 Leach, 527, 539. S. C.

(49) By 4 Geo. IV. c. 54. clergy is restored as to this offence, and the offender may be transported for life, or not less than seven years, or be imprisoned, with or without hard labour, for not more than seven years: Within the term cattle in this act horses are included. 2 Bla. Rep. 721. 2 East P. C. 1074. So are asses, 1 Ry & M. C. C. 3.; and pigs, Russ. & Ry. C. C. 77. 1 Burn J. 24th edit. 556. S. C. But to bring the case within the statute, the offender must be actuated by malice against the owner of the animal killed or maimed. 1 Leach, 527. 2 East P. C. 1073. 1 Leach, 539 Malice against the servant or relative of the owner is not within the act, Russ. & R. C. C. 190.; and the malice must be direct. 3 B & C 248. Malice against the animal itself will not suffice, and, therefore, if a person wound an animal belonging to another from the sudden impulse of passion towards it, it has been held that he is not within the act. 1 Leach, 527. and in notes, 2 East P. C. 1073. 1 Leach, 539. n. Nor will a man who maims cattle to prevent their trespassing on an enclosure. Id. ibid. in notis. 1 Burn J. 24th edit. 556. Cutting the sinews of a horse to prevent its running a race, in consequence of which he died, is not within the act, 2 East, 513. 2 Russ. 943; but the prisoner was afterwards convicted of killing the horse. It is not, however, necessary to give evidence of express malice against the owner, which will be presuined until the contrary appears. 2 East P. C. 1074.; and see 3 Chit. C. L. 2d edit. 1087. To bring the case within this act, it is not necessary that the cattle should die in consequence of the maiming, nor is it even essential that the injury done them should be permanent. Id. ibid. in notis. Russ & Ry. C. C. 16. East. P. C. 1076. Š. C.

ILL-TREATMENT OF CATTLE.-By the 3 Geo. IV. c. 71. to prevent the cruel and improper treatment of cattle, persons wantonly and cruelly beating, abusing, or ill-treating any horse, mare, gelding, mule, ass, ox, cow, heifer, steer, sheep, or other cattle, may be convicted in a penalty not exceeding 51. nor less than 408., the complaint being made within ten days after the of Chitty

fence.

(50) Clergy is restored by 4 Geo. IV. c. 54. and the offender may be transported for life or for seven years, imprisoned with or without hard labour for not exceeding seven years. Dwarf apple and pear trees, bearing fruit, are within the act. Russ. & Ry C. C. 373. The cutting down a tree is sufficient to bring the case within the act, though the tree is not thereby to tally destroyed. Russ. & Ry C C 373. The act must be done from malice against the owner, id. and 2 East P. C. 1067. 1072. 1 Leach, 527. 539 Russ. & Ry. C. C. 10. S. C., not against a mere servant or relative, Russ. & Ry. C. C. 490.; and it seems the act only applies to cases of wanton and malicious mischief. Russ. & Ry. C. C. 490. See the malicious trespass act, 1 Geo. IV. infra, 247. n. 57.

52

gy; and the hundred shall be chargeable for the damages, unless the offender be convicted. In like manner by the Roman law, to cut down trees, and especially vines, was punished in the same degree as robbe. ry. (a) By statute 6 Geo. II. c. 37. and 10 Geo. II. c. 32. it is also made felony without the benefit of clergy, maliciously to cut down any river or sea-bank, whereby land may be overflowed or damaged or to [247] cut any hop-binds growing in a plantation of lands, or wilfully and maliciously to set on fire, or cause to be set on fire, any mine, pit, or depth of coal.53 By statute 11 Geo. II. c. 22. to use any violence in order to deter any person from buying corn or grain; to seize any carriage or horse carrying grain or meal to or from any market or sea-port; or to use any outrage with such intent; or to scatter, take away, spoil, or da. mage such grain or meal; is punished for the first offence with imprisonment and public whipping and the second offence, or destroying any granary where corn is kept for exportation, or taking away or spoiling any grain or meal in such granary, or in any ship, boat, or vessel intended for exportation, is felony, subject to transportation for seven years. By statute 28 Geo. II. c. 19. to set fire to any goss, furze, or fern, growing in any forest or chase, is subject to a fine of five pounds. By statutes → Geo. III. c. 36. & 48., and 13 Geo. III. c. 33., wilfully to spoil or desstroy any timber or other trees, roots, shrubs, or plants, is for the two first offences liable to pecuniary penalties; and for the third, if in the day-time, and even for the first if at night, the offender shall be guilty of felony, and liable to transportation for seven years." 55 By statute 9 Geo. III. c. 29. wilfully and maliciously to burn or destroy any engine or other machines, therein specified, belonging to any mine; or any fences for inclosures pursuant to any act of parliament, is made single felony, and punishable with transportation for seven years, in the offender, his advisers, and procurers.5 And by statute 13 Geo. III. c. 38. the like punishment is inflicted on such as break into any house, &c. belonging to the plate-glass company with intent to steal, cut, or destroy, any of their stock or utensils, or shall wilfully and maliciously cut or destroy the same. And these are the principal punishments of malicious mischief.57

50

n Ff. 47. 7. 2.

54

(51) As will be seen from the preceding notes, the benefit of clergy is restored in all these offences, except the first, by 4 Geo IV. c. 54.

(52) The 3 Geo. IV. c. 33. gives a summary mode of recovering the damage at a special sessions, and forbids any action against the hundred where the damage does not exceed 30%.

(53) By the 4 Geo. IV. c. 46. the benefit of clergy as to this offence is restored, and offenders may be transported for life, or not less than seven years, or imprisoned with or without hard labour, for not exceeding seven years.

By the 13 Geo. II. c. 21. and 10 Geo. II. c. 52. it is actionable, and renders the defendant liable to treble damages and full costs of suit, maliciously to divert or convey water into any coal mine with design to destroy or damage any coal work.

(54) See also the 36 Geo. III. c. 9.

(55) See the 52 Geo. III. c. 72. as to damaging trees, &c. in Alice Holt Forest; and 52 Gen. III. c. 71. as to Woolmer Forest. As to the destruction of madder roots, see 31 Geo. II. c. 35. s. 5.

(56) By 39 & 40 Geo. III. c. 77. s. 1. maliciously destroying or damaging mines, or roads, &c leading from or to the same, or assisting in so doing, is punishable with six months' imprisoninent. And offences of this nature are further provided against by the 56 Geo. III. c. 130. by which the demolishing or destroying engines, erections, or other works belonging to collieries or mines, is punishable with death, without benefit of clergy; and by sec. 2. the party grieved may recover the value of the property destroyed, under the 1 Geo. I. e. 5. limited to 307, by 3 Geo.

IV. c. 33.

(57) Besides these enactinents mentioned by the learned author for the protection of property, there are various others for the protection of manufactures, and a late important act, viz. the 1 Geo. IV. c. 66, for the protection of all kinds of property from malicious mischief, to the extent of 5t