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that statute, which makes an offence felony, gives it incidentally all the properties of a felony at common law".
THUS much for the nature of burglary; which is, as has been faid, a felony at common law, but within the benefit of clergy. The statute however of 18 Eliz. c.7. takes away clergy from the principals, and that of 3 & 4 W. & M. c. 9. from all acceffories before the fact. And, in like manner, the laws of Athens, which punished no fimple theft with death, made burglary a capital crime °.
1 Hawk. P. C. 105.
Pott. Antiq. b. 1. c. 26.
CHAPTER THE SEVENTEENTH.
OF OFFENCES AGAINST PRIVATE PROPERTY.
"HE next, and laft, fpecies of offences against private subjects, are fuch as more immediately affect their property. Of which there are two, which are attended with a breach of the peace; larciny, and malicious mischief: and one, that is equally injurious to the rights of property, but attended with no act of violence; which is the crime of forgery. Of these three in their order.
I. LARCINY, or theft, by contraction for latrociny, latrocinium, is distinguished by the law into two forts; the one called fimple larciny, or plain theft unaccompanied with any other atrocious circumstance; and mixt or compound larciny, which also includes in it the aggravation of a taking from one's house or perfon.
AND, first, of fimple larciny: which, when it is the ftealing of goods above the value of twelvepence, is called grand larciny; when of goods to that value, or under, is petit larciny: offences, which are confiderably distinguished in their punishment, but not otherwife. I fhall therefore firft confider the nature of fimple larciny in general; and then shall obferve the different degrees of punishment, inflicted on it's two feveral branches.
SIMPLE larciny then is "the felonious taking, and carrying away, of the perfonal goods of another." This offence certainly commenced then, whenever it was, that the bounds of property, or laws of meum and tuum, were established. How far fuch an offence can exift in a state of nature, where all things are held to be common, is a queftion that may be folved with very little difficulty. The difturbance of any individual, in the occupation of what he has seised to his prefent use, seems to be the only offence of this kind incident to such a state. But, unquestionably, in focial communities, when property is established, the neceffity whereof we have formerly feen, any violation of that property is subject to be punished by the laws of society: though how far that punishment should extend, is matter of con fiderable doubt. At prefent we will examine the nature of theft, or larciny, as laid down in the foregoing definition.
1. It must be a taking. This implies the confent of the owner to be wanting. Therefore no delivery of the goods from the owner to the offender, upon truft, can ground a larciny, As if A lends B a horse, and he rides away with him; or, if I fend goods by a carrier, and he carries them away; these are no larcinies. But if the carrier opens à bale or pack of goods, or pierces à veffel of wine, and takes away part thereof, or if he carries it to the place appointed, and afterwards takes away the whole, thefe are larcinies: for here the animus furandi is manifeft; fince in the first case he had otherwife no inducement to open the goods, and in the second the truft was determined, the delivery having taken it's effect. But bare non-delivery shall not of course be intended to arise from a felonious defign; fince that may happen from a variety of other accidents. Neither by the common law was it larciny in any fervant to run away with the goods committed to him to keep, but only a breach of civil truft. But by statute 33 Hen. VI. c. 1. the fervants of perfons
* See Vol. II. pag. 8, &c.
b 1 Hal. P. C. 504.
3 Inft. 107.
deceased, accused of embezzling their mafter's goods, may by writ out of chancery (iffued by the advice of the chief justices and chief baron, or any two of them) and proclamation made thereupon, be fummoned to appear perfonally in the court of king's bench, to answer their mafter's executors in any civil fuit for fuch goods; and fhall, on default of appearance, be attainted of felony. And by ftatute 21 Hen. VIII. c. 7. if any fervant embezzles his master's goods to the value of forty fhillings, it is made felony; except in apprentices, and fervants under eighteen years old. But if he had not the poffeffion, but only the care and overfight of the goods, as the butler of plate, the shepherd of sheep, and the like, the embezzling of them is felony at common law. So if a guest robs his inn or tavern of a piece of plate, it is larciny; for he hath not the poffeffion delivered to him, but merely the ufe: and fo it is declared to be by statute 3 & 4 W. & M. c. 9. if a lodger runs away with the goods from his ready furnished lodgings. Under fome circumstances also a man may be guilty of felony in taking his own goods as if he steals them from a pawnbroker, or any one to whom he hath delivered and entrusted them, with intent to charge such bailee with the value; or if he robs his own messenger on the road, with intent to charge the hundred with the lofs according to the statute of Winchester f.
2. THERE must not only be a taking, but a carrying away: cepit et afportavit was the old law-latin. A bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a fufficient afportation, or carrying away. As if a man be leading another's horse out of a close, and be apprehended in the fact; or if a guest, stealing goods out of an inn, has removed them from his chamber down ftairs; these have been adjudged fufficient carryings away, to constitute a larciny. Or if a thief, intending to steal plate, takes it out of a
1 Hal. P. C. 506..
1 Hawk. P. C. 90..
f Fofter. 123, 124.
Book IV. cheft in which it was, and lays it down upon the floor, but is furprized before he can make his escape with it; this is larciny.
3. THIS taking, and carrying away, must also be felonious; that is, done animo furandi: or, as the civil law expreffes it, lucri caufa'. This requifite, befides excufing those who labour under incapacities of mind or will, (of whom we spoke fufficiently at the entrance of this book *) indemnifies alfo mere trefpaffers, and other petty offenders. As if a fervant takes his master's horse, without his knowlege, and brings him home again : if a neighbour takes another's plough, that is left.in the field, and uses it upon his own land, and then returns it: if, under colour of arrear of rent, where none is due, I diftrein another's cattel, or seise them: all these are misdemefnors and trefpaffes, but no felonies'. The ordinary discovery of a felonious intent is where the party doth it clandeftinely; or being charged with the fact, denies it. But this is by no means the only criterion of criminality: for in cases that may amount to larciny the variety of circumstances is so great, and the complications thereof so mingled, that it is impoffible to recount all those, which may evidence a felonious intent, or animum furandi: wherefore they must be left to the due and attentive confideration of the court and jury.
4. THIS felonious taking and carrying away must be of the perfonal goods of another: for if they are things real, or favour of the realty, larciny at the common law cannot be committed of them. Lands, tenements, and hereditaments (either corporeal or incorporeal) cannot in their nature be taken and carried away. And of things likewife that adhere to the freehold, as corn, grass, trees, and the like, or lead upon a house, no larciny could be committed by the rules of the common law; but the feverance of them was, and in many things is ftill, merely a trespass which depended on a fubtilty in the legal notions of