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] And therefore the saccularii, or cutpurses, were more severely punished than common thieves by the Roman and Athenian laws (x) (38). of nature. 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, (to) 1 Hawk. P. C. 98. The like observation will certainly hold in the cases of horse-stealing, (1 Hal. P. C. 531.) thefts in Northumberland and Cumberland, and stealing woollen cloth from the tenters; and possibly in such other cases where it is provided by any statute that simple larceny, under (38) By 7 and 8 Geo. IV. c. 29, § 6, if any person shall rob any other person of any chattel, money, or valuable security, every such offender, being convicted thereof, shall suffer death as a felon; and, if any person shall steal any such property from the person of another, or shall assault any other person with intent to rob him, or shall with menaces or by force demand any such property of any other person, with intent to steal the same, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable to transportation for life, or not less than seven years, or to be imprisoned not exceeding four years; with, if a male, public or private whippings. This statute is nearly a consolidation of 3 W. and M. c. 9, 1, respecting robbery; of 48 Geo. III. c. 129, respecting stealing from the person; and of 4 Geo. IV. c. 54, respecting assaults, &c. with intent to rob. The 23 Hen. VIII. c. 1; 3 W. and M. c. 9; and 1 E. VI. c. 12, relating to robbery; the 48 Geo. III. c. 129, relating to stealing from the person; and the 4 Geo. IV. c. 54, relating to assaults with intent to rob, are repealed by the 7 and 8 Geo. IV. c. 27. The value of the property is immaterial, in all the cases mentioned in the new Act. To constitute a stealing from the person, the thing must be completely removed from VOL. II. certain circumstances, shall be felony without be- (z) Ff. 47. 11. 7. Pott. Antiq. 1. 1, c. 26. the person; removal from the place where it was, if it remain throughout with the person, is not sufficient. Rex v. Thompson, 1`R. and M. C. C. 78. (39) In New-York, robbery in the first degree, is the feloniously taking of the personal property of another from his person, or in his presence and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person, and is punishable by imprisonment not less than 10 years: in the second degree, it is such taking of such property of another in his presence or from his person, but which shall have been delivered or suffered to be taken through fear of some injury to his person or property, or to the person of any relative or member of his family, threatened to be inflicted by the robber at a different time: this last is punishable by imprisonment in the state-prison not more than 10 years. (2 R. S. 677, § 56, &c.) Sending, delivering, or making letters threatening to accuse another of a crime, or to injure the person or property of another, with a veiw to extort money, &c. is an attempt to rob, and punishable by like imprisonment for not more than 5 years. (Id. § 58.) 74 (40) By 7 and 8 Geo. IV. c. 29, ◊ 7, if any person shall accuse or threaten to accuse any other person of any infamous crime, as de 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 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. 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 (f) Trin. 3 Ann. by all the judges. (h) 1 Ilawk. P. C. 96. 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." 1 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 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 employed. 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 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) 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 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. 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 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. 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 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. Leach, 280. 1 East P. Ć. 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 maliciously 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 other. wise, 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 kilns (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 felony, punishable with transportation not exceeding 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. I. st. 2, c. 48; 6 Geo. I. c. 16; 9 Geo. I. c. 22; and 28 Geo. II. c. 19, § 3, 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 otherwise than by fire, is a felony, punishable with transportation for seven years, or imprisonment not exceeding two years, with private or public whipping. And by 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) (1); 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). (Z) 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." (50) Repealed by 7 and 8 Geo. IV. c. 27. (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 public whipping for male offenders. 5 Eliz. c. 21, and 4 Geo. IV. c. 54, are repealed as they relate 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, waggonway, 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 tumultuosly assembled together, in every such case the inhabitants 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 com |