away; it is larceny: 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, or to any other building, is made felony, liable to transportation for seven years (10); and to steal, damage, or destroy underwood or hedges, and the like (11), to rob orchards or gardens of fruit growing therein (12), to steal or otherwise destroy any turnips, potatoes, cabbages, parsnips, pease, or carrots, or the roots of madder when growing, are (o) punished criminally (13), 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 of the value of 5s. is by statute 6 Geo. III. c. 36. made felony in the principals, aiders, and abettors, and in the purchasers 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 [*234] or plant, by day or night, is liable to pecuniary penalties for the two first offences, and for the third is constituted a felony liable to transpor ation for seven years (14). Stealing ore out of mines is also no larceny, up. on the same principle of adherence to the freehold; with an exception only (a) 3 Inst. 109. 1 Hal. P. C. 510. (0) Stat. 43 Eliz. c. 7. 15 Car. II. c. 2. 31 Geo. II. c. 35. 6 Geo. 111. c. 48 9 Geo. III. c. 41. 13 Geo. III. c. 32. (10) By statute 7 and 8 Geo. IV. c. 29, 44, stealing, ripping, cutting, or breaking with Intent to steal, any glass or woodwork belongng to any building, or any utensil or fixture nade of metal or other material fixed in or to any building whatsoever, or metal fixtures in and being private property, or for a fence to any house, garden, or area, or in any square, &c. is a felony punishable as in the case of simple larceny. (11) By statute 7 and 8 Geo. IV. c. 30, 19, persons maliciously destroying or damaging any trees, shrubs, or underwood, growing in any park, pleasure-ground, garden, orchard, or avenue, (in case the injury exceeds the sum of 11.,) shall be guilty of felony, and be punished with transportation for seven years, or imprisonment not exceeding two years, with public whipping in addition; and committing the offence on trees, &c. growing elsewhere, (where the injury exceeds 51.) is subject to the same punishment. And by 30, destroying such property wheresoever growing, of any value above one shilling, renders the offender liable to a fine of 51. for the first offence; to hard labour and imprisonment not exceeding twelve months for the Becond offence, with whipping in addition; and to transportation or imprisonment as in the last section, as for a felony, for a third of ence. (12) By 7 and 8 Geo. IV. c. 29, § 42, stealing or destroying any plant, root, fruit, or vegetable production, growing in any garden, orchard, nursery-ground, hot-house, greenhouse, or conservatory, is punishable, for a first offence, with imprisonment and hard labour, not exceeding six calendar months, or a ne not exceeding 201., over and above the VOL II. (p) Oak, beech, chesnut,walnut, ash, elm, cedar, fir, asp, lime, sycamore, birch, poplar, alder, larch, maple, and hornbeam. value of the articles stolen; and the second offence is felony, punishable as in the case of simple larceny. 73 (13) By 7 and 8 Geo. IV. c. 29, 43, the first offence is punishable with hard labour and imprisonment not exceeding one month, or with a fine not exceeding 11., besides the value of the articles stolen, and the second offence with whipping, and imprisonment for a term not exceeding six months. The words of the Act are stealing or destroying "any cultivated root or plant used for the food of man or beast, or for medicine, or for distilling, or for dyeing, or for or in the course of any manufacture, and growing in any land open or enclosed not being a garden, orchard, or nursery-ground." (14) By 7 and 8 Geo. IV. c. 29, § 38, per sons stealing or destroying with intent to steal, any tree, shrub, or underwood, growing in any park, pleasure-ground, garden, or near houses, (where the injury exceeds the sum of 17.) are guilty of felony, and liable to be pu nished as in cases of simple larceny; and stealing, or damaging with intent to stea., such property elsewhere, above the value of 51. is declared felony, and liable to the same punishment. And, by 39, stealing, or damaging with intent to steal, any trees, shrubs, &c., wheresoever growing, to the value of one shilling, is punishable with a fine of 51. for the first offence; with hard labour, whipping, and imprisonment, not exceeding tweive months, for the second offence; and the third offence is felony, punishable as in case of simple larceny. There seems to be no pu nishment if the property stolen or destroye l′be under the value of a shilling. to mines of black lead the stealing of ore out of which, or entering the st.me 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 (15). Upon nearly the same principle the stealing of writings relating to a real estate is no felony; but a tres. pass (q) because they concern the land, or (according to our technical language) savour of the reality, 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 larceny might be com mitted; being of no intrinsic value (s); 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 larcenies, as the money they were meant to secure (16), (17). 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 clergy (18). 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 [*235] steal 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 (19). Larceny also could not at common law he 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 (g) 1 Hal. P. C. 510. Stra. 1137. (r) See Book II. page 438. (15) By 7 and 8 Geo. IV. c. 29, 37, stealing or severing with intent to steal, any ore, or other substance, from certain mines, is fetony, and punishable as in case of simple larceny. The 25 Geo. II. c. 105, is repealed by 7 and 8 Geo. IV. c. 27. (16) See 2 K. S. 679, § 66, &c. (17) Repealed by 7 and 8 G. IV. c. 27; and by 7 and 8 G. IV. c. 29, § 5. persons stealing any tally, order, or other security, either pubhc or private, relating to this country, or to any foreign state, or any debenture, deed, bond, bill, note, warrant, order, or other security for money, or any order for the delivery of goods, shall be guilty of felony, and punished as though they had stolen any chattel o equal value, according to the interest the pa.ies have in the securities stolen: and all the documents enumerated in the Act shall be deemed to be included in the words "valuable seurity.' A check on a banker, written on unstamped Dape:, payable to D. F. J., and not made pay (s) 8 Rep. 33. able to bearer, is not a valuable security within the meaning of the Act. Rex v. Yates, Car. C. L. 273, 233. (18) See note 5, p. 231, and the statute there referred to. (19) See 5 Geo. III. c. 25; 42 Geo. III. c. 81; and 52 Geo. III. c. 143, with respect t these offences; by the latter of which sta tutes, the provisions of the former are incorpo rated, and accessaries before the fact are oust ed of clergy, and may be tried before the principal is convicted. In a case under 7 Geo. III. c. 50, where a person was indicted as charger and sorter, and was acquitted on this special count, it was held that he could not be convicted on a general count as a person employ ed in the post-office, on evidence that he was no otherwise employed than as a sorter Shaw's case, 2 East, P. C. 580. A bill of ex change may be laid as a warrant for the paymen of money within that statute. Willoughby case, 2 East, P. C. 581. (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 (20). Larceny 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, larceny may be committed (u). And now, by statute 9 Geo. I. c. 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 (21). And 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 201., or for [*236] every deer actually killed, wounded, destroyed, taken in any toil 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 taking 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 (22). Stealing hawks, in disobedience to the rules prescribed by the statute 37 Edw. III. c. 19, is also felony (w) (23). 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 domitae 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), larceny may be committed; and also of the flesh of such as are either domitae or ferae naturae, when killed (z) (24).5 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 that the crime of stealing them amounts to larceny (b). But by statute 10 Geo. III. c. 18. very high pecuniary penalties, or a long imprisonment, and whipping in their 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) (25). Notwithstanding however that no larceny 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 larceny 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 it (ƒ) (26). 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 larceny, 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 now continued eighteen sessions of parliament un repealed. (y) Dal. 21. Crompt. 36. 1 Hawk. P. C. 93. 1 Hal. P. C. 507. The King v. Martin, by all the udges. P. 17 Geo. III. (z) 1 Hal. P. C. 511. (a) See Book II. page 393. (b) 1 Hal. P C. 512. (c) See the remarks in page 4. The statute hath (24) By statute 7 and 8 Geo. IV. c. 29, § 25, it is enacted, "That if any person shall steal any horse, mare, gelding, colt, or filly, or any bull, cow, ox, heifer, or calf, or any ram, ewe, sheep, or lamb, or shall wilfully kill any of such cattle, with intent to steal the carcass, or skin, or any part of the cattle so killed, every such offender shall be guilty of felony, and being convicted thereof, shall suffer death as a felon."t (25) By statute 7 and 8 Geo. IV. c. 29, 31, aling any dog, beast, or bird ordinarily kept in a state of confinement, and not the subject of larceny at common law, is punish able oy fine not exceeding 201., together with the value of the dog &c. lost, for the first of (d) 1 Hal. P. C. 512. (e) Gravin. 1. 3, § 106. (f) See Book II. page 429. (g) Montesq. Sp. L. b. 30, ch. 19. fence, and imprisonment not exceeding twelve (5) Bee Hov. n. (5) at the end of the Vol. B. IV. punishmen. capital. The laws of Draco at Athens punished it with death bur his laws were said to be written in blood; and Solon afterwarde changed the penalty to a pecuniary mulct. And so the Attic laws in general continued (h); except that once, in a time of dearth, it was made capital to break into a garden, and steal figs: but this law, and the in formers against the offence, grew so odious, that from them all malicious informers were stiled 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 pro priety, if not lawfulness, of inflicting capital punishment for simple theft (i). And certainly 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 corporal punishment; yet how far this corporal punishment ought to extend, is what has occasioned the doubt. Sir Thomas More (j), and the marquis Beccaria (*), 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 dili- [*237] gence, 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 (2), 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 larceny 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 larceny, is only punished by imprisonment or whipping at common 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 plateglass company (r), yet the punishment of grand larceny, or the stealing (h) Petit. LL. Attic. 1. 7, tit. 5. (i) Est enim ad vindicanda furta nimis atrox, nec tamen ad refraenanda sufficiens; quippe neque furtum simplex tam ingens facinus est, ut capite debeat plecti; neque ulla poena est tanta, ut ab latrociniis cohibeat eos, qui nullam aliam artem quaerendi victus habent, (Mori Utopia. edit. Glasg pag. 21.)-Denique, cum lex Mosaica, quanquam inclemens et aspera, tamen pecunia furtum, baud morte, mulctavit; ne putemus Deum, in nova ege clementiae qua pater imperat filiis majorem inulsisse nobis invicem saeviendi licentiam. Haec runt cur non licere putem ; quam vero sit absurdum. atque etiam perniciosum reipublicae, furem atque homicidam er aequo puniri, nemo est 'oprnor) qu nesciat. (Ibid. 39.) (1) Utop. page 42. (2) L. of N. b. 8, c. 3. (0) Tac. de mor Germ. c. 12. (r) Stat. 13 Geo. III. c |