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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). 2. It is immaterial of what value the thing taken is a penny as well as a pound, 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 [*243] from other larcenies. For if one *privately steals sixpence from

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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 twelvepence. 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 great degree of terror or affright in the party robbed: it is enough that so 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 (41).

(a) 1 Hal. P. C. 533.

(b) Comyns, 478. Stra. 1015. (c) 1 Hawk. P. C. 97.

(d) Ff. 4. 2. 14, 12. (e) 1 Hal. P. C. 534.

scribed in 9, with a veiw or intent to extort or gain from him, and shall by intimidating him by such accusation or threat, extort or gain from him, any chattel, money, or valuable security, every such offender shall be deemed guilty of robbery, and shall be indicted and punished accordingly.

It is equally a robbery to extort money from a person by threatening to accuse him of an unnatural crime, whether the party so threat ened has been guilty of such crime or not. Rex v. Gardner, 1 C. and P. 79.

(41) And see R. & R. C. C. 146. 1 Leach, 139 193. 278. 3 Chit. C. L. 803. Mr. Jus ice Ashurst says, "The true definition of "obbery 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 ter. or, as to induce the party unwilingly to part with his property; and whether terro: 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

(f) Trin. 3 Ann. by all the judges.
(g) Fost. 128.

(h) 1 Hawk. P. C. 96.
(i) Ibid. 97.

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 prin ciples of law, as well as the authority of for mer 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." I Leach, 280. And fear of loss of character and service upon a charge of sodo mitical 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 mo ney, the party were under no apprehension, 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 employ ed. 1 East, P. Č. 734. R. & R. C. C. 408

This species of larceny is debarred of the benefit of clergy by statute 23 Hen. VIII. c. 1, and other subsequent statutes, not indeed in generai, 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 sta tute 3 & 4 W. & M. c. 9, which takes away clergy from both principals and accessaries before the fact, in robbery, wheresoever committed (42). 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 re

(k) 1 Hal. P. C. 535.

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 make 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 18 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. 1 East P. C. 711. If thieves meet a person, and by menaces of death, make him swear to bring 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 robbery. 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 hanging 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 pri soner 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. 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 position. 1 Leach, 320. Nor will it excuse the violence that it was done under pretence of law; for where a bailiff handcuffed a pri soner 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 rea.ity necessary. Leach, 280. 1 East P. C. 709. But compare these decisions with the statutes quoted, note 39. p. 243. (42) These statutes are repealed by 7 and 8 G. IV. c. 27 Vide ante, 241 note (37), 242 note (39).

lation to the crime of arson; for as that affects the habitation, so this does the other property, of individuals. And therefore any damage arising from this mischievous disposition, though only a trespass at 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.

[*244] *And, first, by statute 22 Hen. VIII. c. 11. perversely and ma liciously to cut down or destroy the powdike, in the fens of Norfolk and Ely, is felony (43). 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 parliament (44). By statute 43 Eliz. c. 13. (for preventing rapine on the northern 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 accessary 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 kilus (45); or to kill any horses, sheep, or other cattle, is felony; but

the offender may make his election to be transported for seven [*245] years (46); and to maim or hurt such "horses, sheep, or other cat

tle, is a trespass for which treble damages shall be recovered (47). 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 ship, is felony without benefit of clergy (48).

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

(44) Vide ante, 145, note (6), where it will be seen that these offences are provided for under Mr. Peel's Acts.

(45) By statute 7 and 8 Geo. IV. c. 30, 17, maliciously setting fire to any stack of corn, grain, pulse, straw, hay, or wood, is a capital felony; and setting fire to any crops of corn, grain, or pulse, whether standing or cut down, or to any part of a wood, coppice, or plantation of trees, or to any heath, gorse, furze, or fern, wheresoever growing, is a felo. ny, punishable with transportation not exceed. ing seven years, or imprisonment not exceed ing two years, with private or public whipping for male offenders. The 43 Eliz. c. 13.; 4 W. and M. c. 23; 22 and 33 Car. II. c. 7; 1 Geo. 1. st. 2, c. 48; 6 Geo. I. c. 16; 9 Geo. I. c. 22; and 28 Geo. II. c. 19, 63, are repealed by 7 and 8 Geo. IV c. 27

By statute 1 Geo. I. c. 48. mali

(46) Vide ante, 236, note (24). This of fence now amounts to a capital felony.

(47) By statute 7 and 8 Geo. IV. c. 30. § 16, maliciously killing, maiming, or wounding any cattle, is a felony punishable with transportation for life, or not less than seven years, or imprisonment not exceeding four years, with private or public whipping. The 22 and 23 Car. II. c. 7; 14 Geo. II. c. 6; and Geo. II. c. 34, on this head, are repealed by 7 and 8 Geo. IV. c. 27. By 25, it is provided, that malice against the owner of the property destroyed, shall not be essential to any offence under the Act.

(48) By 7 and 8 Geo. IV. c. 30, 9, maliciously setting fire to, or in anywise destroy ing, any ship or vessel, whether in a finished or unfinished state, is a capital felony. And by § 10, maliciously damaging any ship other wise than by fire, is a felony, punishalde with transportation for seven years, or imprison ment not exceeding two years, with private or public whipping. And by 11, exhibiting

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ciously to set on fire any underwood, wood, or coppice, 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 certain 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 (49). By statute 9 Geo. I. c. 22. (50) commonly 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) (/); by this black act, I say, which has in part been mentioned under the several heads of riots, menaces, mayhem, and larceny (m), it is farther enacted, that to set fire to any house, barn, or outhouse (which is extended by statute 9 Geo. III. c. 29. to the *ma- [246] licious and wilful burning or setting fire to all kinds of mills) (51), or to any hovel, cock, mow, or stack of corn, straw, hay, or wood (52) ; or unlawfully and maliciously to break down the head of any fish-pond, whereby the fish shall be lost or destroyed (53); or in like manner to kill, maim, or wound any cattle (54): or cut down or destroy any trees planted in an avenue, or growing in a garden, orchard, or plantation, for ornament, shelter, or profit (55); all these malicious acts, or procuring by gift or promise of reward any person to join them therein, are felonies without benefit of clergy; and the hundred shall be chargeable for the damages, unless the offender be convicted (56).

(2) 3 Inst. 197

false lights or signals to bring any ship or vessel into danger, or tending to its immediate destruction or destroying the same in distress, or when cast on shore, or any of its contents, or preventing any assistance to those on board, is made a capital felony. And by 1 and 2 Geo. IV. c. 75, § 11, injuring or concealing any buoys, ropes, or marks, belonging to any anchor or cable attached to any ship or vessel whatever, whether in distress or otherwise, is punishable with transportation for any term not exceeding seven years, or imprisonment for any number of years at the discretion of the court.

(49) This statute was repealed by 7 Geo. IV. c. 64, and no subsequent enactment on the subject has been made.

(5) Repealed by 7 and 8 Geo. IV. c. 27. (51) Vide ante, 222, note (6). (52) Vide ante, 244, note (45). (53) Vide ante, 144, note (3). (54) Vide ante, note (47).. (55) Vide ante, 233, in notis. (56) By 7 and 8 Geo. IV. c. 30, 15, maliciously breaking down, or destroying, the dam of any fishpond, or of any water being private property, or in which there is any private right of fishery, with intent to destroy the fish therein or putting any lime or other noxious ingredient therein with intent to destroy the fish, or breaking down the dam of any millpond is declared to be a misdemeanor, punish

In like manner by the Roman law (m) See page 144. 208. 235. 240.

able at the discretion of the court, with transportation for seven years, or imprisonment not exceeding two years, with private or publio whipping for male offenders. 5 Eliz. c. 21, and 4 Geo. IV. c. 54, are repealed as they re late to this subject, by 7 and 8 Geo. IV. c. 27, as also the 9 Geo. III. c. 29.

By statute 7 and 8 Geo. IV, c. 31, 2, it is enacted, "That if any church or chapel, or any chapel for the religious worship of persons dissenting from the united church of England and Ireland, duly registered or recorded, or any house, stable, coach-house, out-house, warehouse, office, shop, mill, malt house, hop-oast, barn, or granary, or any building or erection used in carrying on any trade or manufacture, or branch thereof, or any machinery, whether fixed or moveable, prepared for or employed in any manufacture or in any branch thereof, or any steam engine or other engine for sinking, draining, or working any mine, or any staith, building, or erection, used in conducting the business of any mine, or any bridge, waggon way, or trunk for conveying minerals from any mine, shall be feloniously demolished, pulled down, or destroyed, wholly or in part, by any person riotously and tumultuously as sembled together, in every such case the in habitants of the hundred, wapentake, ward, or other district in the nature of a hundred by whatever name it shall be denominated, in which any of the said offences shall be rom

to cut down trees, and especially vines, was punished in the same degree as robbery (n). 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 lands may be overflowed or damaged; or to cut any hop-binds growing in a plantation of hops (57), or wilfully and maliciously to set on fire, or cause to be set on fire, any mine, pit, or depth of coal (58). 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 damage 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 (59). 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 (60). By statutes 6 Geo. III. c. 36. & 48, and 13 Geo. III. c. 33. wilfully to spoil [247] or destroy 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 (61). 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 (62); (n) Ff. 47. 7. 2.

mitted, shall be liable to yield full compensation to the person or persons damnified by the offence, not only for the damage so done to any of the subjects hereinbefore enumerated, but also for any damage which may at the same time be done by any such offenders to any fixture, furniture, or goods whatever, in any such church, chapel, house, or other of the buildings or erections aforesaid."

By 3, persons damnified by the offence, or the servant in whose charge the injured property was intrusted, must within seven days after the offence has been committed go before a justice of the peace residing within the hundred, and state on oath the name of the offender if known, and submit to an examination touching the offence, and become bound to prosecute the offenders when taken. The action must be commenced within three calendar months after the offence.

By 4, all process in the action must be served on the high constable, who within seven days must give notice thereof to two magistrates of the division, and who may defend or let judgment go by default, as advised.

By5, any inhabitant of the hundred may be a competent witness. By 6, if the plaintiff recovers, the writ of execution is not to be enforced but the sheriff on receipt of it is to make his warrant to the county treasurer, who s directed to pay the amount. 7 directs that the high constable's expenses are to be allowed by two justices, and paid by the county treasurer: the whole of such monies are to be levied on the hundred over and above their share of the county rate.

By 8, where the injury does not exceed 301, the parties are to give notice to the high constable of their claim for compensation, who is to exhibit the same to two magistrates in the division, and they are to appoint a special petty session between twenty and thirty days afterwards to determine the claim.

By stat. 7 and 8 Geo. IV. c. 27, all prior Acts relating to actions against the hundred are repealed; and the hundred is now no longer liable in cases of robbery, but only in cases where the damage is done by a riotous assembly.

(57) Benefit of clergy was restored by stat 4 Geo. IV. c. 46, and transportation and imprisonment substituted. This Act is now repeal ed by 7 and 8 Geo. IV. c. 27, as also the Acts mentioned in the text.

(58) By statute 7 and 8 Geo. IV. c. 30, 18, maliciously destroying any hop-binds grow. ing on poles in plantations of hops, is a felony liable to transportation for life, or not less than seven years, or imprisonment not exceeding four years, with private or public whipping. And by 5, setting fire to any coal-mine is a capital felony.

(59) The latter part of this Act relating to the damages to which the hundred is liable is repealed by 7 and 8 Geo. IV. c. 27; and see as to the offences mentioned in the text, 9 Geo. IV. c. 31, s. 26.

(60) Repealed. Vide ante, 244, note (45

(61) Vide ante, 233, note (11), where the existing punishments are set forth. The sta tutes mentioned in the text are repealed.

(62) By statute' 7 and 8 Geo. IV. c 27, th

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