a

it must be such a larceny as stands in need of the benefit of clergy, viz. of above the value of twelvepence; or else the offender shall not have judgment of death. For the statute creates no new offence ; but only prevents 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 [*242] of nature. And therefore the saccularii, or cutpurses, were more severely punished than common thieves by the Roman and Athenian laws (x) (38).

Open and violent larceny from the person, or robbery, the rapina of the civilians, is the felonious and forcible taking, from the person of another, of goods or money to any value, by violence or putting him in fear (y) (39). 1. There must be a taking, otherwise it is no robbery. A mere attempt to rob was indeed held to be 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 (40). If the thief, having once taken a purse,

(10) 1 Hawk. P. C. 98. The like observation will certain circumstances, shall be felony without be. certainly hold in the cases of horse-stealing, (1 nent of clergy. Hal.P.C.531.) thefts in Northumberland and Cum- (I) FY. 47. 11.7. Pott. Antiq. I. 1, c. 26. berland, and stealing woollen cloth from the ten- (y) 1 Hawk. P.C. 95. ters; and possibly in such other cases where it is (2) 1 Hal. P. C. 532. provided by any statute that simple larceny, under

a

(38) By 7 and 8 Gen. IV. c. 29, 9 6, if any the person ; removal from the place where it person shall rob any other person of any chats was, if it remain throughout with the person, iel, money, or valuable security, every such is not sufficient. Rex v. Thompson, I'R. and offender, being convicted thereof, shall suffer M. C. C. 78. death as a felon ; and, if any person shall (39) In New York, robbery in the first de. steal any such property from the person of an- gree, is the feloniously taking of the personal other, or shall assault any other person with property of another from his person, or in his intent to rob him, or shall with menaces or by presence and against his will, by violence to force demand any such property of any other his person, or by putting him in fear of some person, with intent to steal the same, every immediate injury to his person, and is punish. such offender shall be guilty of felony, and, able by imprisonment not less than 10 years : being convicted thereof, shall be liable to trans. in the second degree, it is such taking of such portation for life, or not less than seven years, property of another in his presence or from or to be imprisoned not exceeding four years; his person, but which shall have been delivered with, if a male, public or private whippings. or suffered to be taken through fear of some This statute is nearly a consolidation of 3 W. injury to his person or property, or to the perand M. c. 9, 91, respecting robbery ; of 48 son of any relative or member of his family, Geo. III. c. 129, respecting stealing from the threatened to be inflicted by the robber at a person ; and of 4 Geo. IV. c. 54, respecting different time: this last is punishable by imassaults, &c. with intent to rob. The 23 Hen. prisonment in the state.prison not more than VIJI. c. 1 ; 3 W. and M. c. 9; and 1 E. VI.c. 10 years. (2 R. S. 677, $ 56, &c.). 12, relating to robbery; the 48 Geo. III. c. Sending, delivering, or making letters 129, relating to stealing from the person ; and threatening to accuse another of a crime, or the 4 Geo. IV. c. 54, relating to assaults with to injure the person or property of another, intent to rob, are repealed by the 7 and 8 Geo. with a veiw to extort money, &c. is an attempt IV. c. 27. The value of the property is im. to rob, and punishable by like imprisonment material, in all the cases mentioned in the new for not more than 5 years. (Id. $ 58.) Act.

(40) By 7 and 8 Ġeo. IÙ. c. 29, 7, if any To constitute a stealing from the person, person shall accuse or threaten to accuse any the thing must be completely removed from other person of any infamous crime, as deVOL. II.

74

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 robbely (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 vio

lence, or putting in fear, is the criterion that distinguishes robbery [*243] from other larcenies. 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 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 ex. torts 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).

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 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 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) I Hal. P. C. 535.

And the influence exercised over the mind, Hale, 534. where the force is merely constructive, must To constitute a robbery, where an actual be of such a kind as to disenable the prosecu. violence is relied on, and no putting in fear can tor to make resistance. 2 Leach, 721. 6 East, be expressly shewn, there must be a struggle, 126. So that a threat to take an innocent per. or at least a personal outrage. So that to son before a magistrate, and thence to prison, snatch property suddenly from the hand, to without charging him with any specific crime, seize a parcel carried on the head, to carry is not sufficient to make the party a robber, if away a hat and wig without force, and to take he obtain money to induce him to forbear. 2 an umbrella of a sudden, have been respec. Leach, 721. Indeed it has been said that the tively holden to be mere larcenies. 1 Leach, only instance in which a threat will supply the 290, 1. and in notes. But where a man snatch: place of force, is an accusation of unnatural ed at the sword of a gentleman hanging at his practices. 2 Leach, 730, 1. 1 Leach, 139. side, and the latter, perceiving the design, 2 Russ. 1009. And, it has recently been held, laid hold on the scabbard, on which a contest contrary, it seems, to the principle of some ensued, and the thief succeeded in wresting former decisions, that even, in this case, the the weapon from its owner, his offence, was money must be taken immediately on the holden to be robbery. Id. ibid. Snatching threat, and not after time bas been allowed an article from a man will constitute robbery to the prosecutor to deliberate and advise with if it is attached to his person or clothes so as friends, as to the best course to be pursued, to afford resistance; and therefore, where the 1 East P. C. Append. xxi; though, as some prosecutor's watch was fastened to a steel of the judges dissented, it does not seem to chain which went round his neck, and the be decisive. Where, on the other hand there seal and chain hung from his fob, and the priis an immediate threat of injury to the proper. soner laid hold of the seal and chain and pulled ty, as by pulling down a house with a mob in the watch from the fob, but the steel chain time of riots, which produces great alarm, and still secured it, and by two jerks the prisoner induces a man to part with his money, this has broke the steel chain, and made off with the been holden to be a sufficient putting in fear watch, it was held a robbery, for the prisoner to constitute robbery. 2 East P. C. 729. 731. did not get the watch at once, but had to overAnd if a man assaults a woman with intent come the resistance the steel chain made, and to commit a rape, and she, in order to prevail actual force was used for that purpose. R. & on him to desist, offers him money which he R. C. C. 419. And where a heavy diamond takes, but continues his endeavours, till pre. pin, with a corkscrew stalk, which was twisted vented by the approach of a third person, he and strongly fastened in a lady's hair, was will be guilty of robbery, though his original snatched out, and part of the hair torn away, intent was to ravish. I East P. C. 711. If the judges came to a similar decision. I thieves meet a person, and by menaces of Leach, 335. The case of the man who tore death, make him swear to bring them money, an ear-ring from the ear, and in so doing la. and he, under the continuing influence of cerated the flesh, serves also to confirm this fear for his life, complies, this is robbery in position. 1 Leach, 320. Nor will it excuse them, though it would not be so, if he had no ihe violence that it was done under pretence personal fear, and acted merely from a super- of law; for where a bailiff handcuffed a pristitious regard to an oath so extorted. 1 East soner and used her with great cruelty, for the P. C. 714. In the absence of force, to consti- purpose of extorting money from her, he was tute robbery the fear must arise before and at holden to be guilty; as were also a number of the time of the property being taken, it is not men for seizing a waggon under pretence that enough that it arise afterwards; and where there was no permit, when none was in reality the prisoner by stealth took some money out necessary. I Leach, 280. | East P. C. of the prosecutor's pocket, who turned round 709. But compare these decisions with the saw the prisoner, and demanded the money, statutes quoted, note 39. p. 243. but the prisoner threatening him, he desisted (42) These statutes are repealed by 7 and through fear from making any farther demand, 8 Ĝ. IV. c. 27. Vide ante, 241, note (37), 242 it was held no robbery. Roll. Rep. 154. 1 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 kilos (45); or to kill any horses, sheep, or other cattle, is selony ; 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 des. troying 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). By statute 1 Geo. I. c. 48. mali

(43) By 15 Car. II. c. 17.9 13. maliciously (46) Vide ante, 236, nole (24). This ofto cut down or to destroy any works for con- fence now amounts to a capital felony. veying the waters of the great Bedford level, (47) By statute 7 and 8 Geo. IV. c. 30. is subject to the same punishment.

16, maliciously killing, maiming, or wounding (44) Vide ante, 145, note (6), where it will any cattle, is a selony punishable with transbe seen that these offences are provided for portation for life, or not less than seven years, under Mr. Peel's Acts.

or imprisonment not exceeding four years, (45) By statute 7 and 8 Geo. IV. c. 30, with private or public whipping. The 22 and $ 17, maliciously setting fire to any stack of 23 Car. IL. c. 7; 14 Geo. II. C. 6; and Geo. corn, grain, pulse, straw, hay, or wood, is a II. c. 34, on this head, are repealed by 7 and 8 capital felony; and setting fre to any crops Geo. IV. c. 27. By 9 25, it is provided, that of corn, grain, or pulse, whether standing or malice against the owner of the property decut down, or to any part of a wood, coppice, stroyed, shall not be essential to any offenco or plantation of trees, or to any heath, gorse, under the Act. furze, or fern, wheresoever growing, is a felo: (48) By 7 and 8 Geo. IV. c. 30, $ 9, maliny, punishable with transportation not exceed. ciously setting fire to, or in anywise destroy; ing seven years, or imprisonment not exceed. ing, any ship or vessel, whether in a finished ing two years, with private or public whipping or unfinished state, is a capital felony. And for male offenders. The 43 Eliz. c. 13. ; 4 W. by $ 10, maliciously damaging any ship other. and M. c. 23 ; 22 and 33 Car. II. c. 7; 1 Geo. wise than by fire, is a felony, punishable with 1. st. 2, c. 48 ; 6 Geo. I. c. 16; 9 Geo. I. c. transportation for seven years, or imprison. 22 ; and 28 Geo. II. c. 19, 93,' are repealed ment not exceeding two years, with private or by 7 and 8 Geo. IV. c. 27.

public whipping. And by 0 11, exhibiting

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) (l); 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). In like manner by the Roman law, (1) 3 Inst. 197.

(m) See page 144. 208. 235. 240. false lights or signals to bring any ship or ves- able at the discretion of the court, with transsel into danger, or tending to its immediate portation for seven years, or imprisonment not destruction or destroying the same in distress, exceeding two years, with private or public or when cast on shore, or any of its contents, whipping for male offenders. 5 Eliz. c. 21, or preveniing any assistance to those on board, and 4 Geo. IV. c. 54, are repealed as they reis made a capital felony: And by 1 and 2 late to this subject, by 7 and 8 Geo. IV. c. 27, Geo. IV. c. 75, $ 11, injuring or concealing as also the 9 Geo. III. c. 29. any buoys, ropes, or marks, belonging to any By statute 7 and 8 Geo. IV. c. 31, 92, it is anchor or cable attached to any ship or vessel enacted. “That if any church or chapel, or any whatever, whether in distress or otherwise, is chapel for the religious worship of persons dispunishable with transportation for any term senting from the united church of England not exceeding seven years, or imprisonment and Ireland, duly registered or recorded, or any for any number of years at the discretion of house, stable, coach-house, out-house, warethe court.