Commentaries on the Laws of England (1765-1769)
Sir William Blackstone
Of Offenses Against Private Property
THE next, and last, species of offenses against private subjects, are such as more immediately affect their property. Of which there are two, which are attended with a breach of the peace; larceny, 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.
1. LARCENY, or theft, by contraction for latrociny, latrocinium, is distinguished by the law into two sorts; the one called simple larceny, or plain theft unaccompanied with any other atrocious circumstance; and mixed or compound larceny, which also includes in it the aggravation of a taking from one’s house or person.
AND, first, of simple larceny: which, when it is the stealing of goods above the value of twelvepence, is called grand larceny; when of goods to that value, or under, is petit larceny: offenses, which are considerably distinguished in their punishment, but not otherwise. I shall therefore first consider the nature of simple larceny in general; and then shall observe the different degrees of punishment, inflicted on its two several branches.
SIMPLE larceny then is “the felonious taking, and carrying “away, of the personal goods of another.” This offense certainly commenced then, whenever it was, that the bounds of property, or laws of meum and tuum [mine and yours], were established. How far such an offense can exist in a state of nature, where all things are held to be common, is a question that may be solved with very little difficulty. The disturbance of any individual, in the occupation of what he has seized to his present use, seems to be the only offense of this king incident to such a state. But, unquestionably, in social communities, when property is established, the necessity whereof we have formerly seen,1 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 considerable doubt. At present we will examine the nature of theft, or larceny, as laid down in the foregoing definition.
1. IT must be a taking. This implies the consent of the owner to be wanting. Therefore no delivery of the goods from the owner to the offender, upon trust, can ground a larceny. As if A lends B a horse, and he rides away with him; or, if I send goods by a carrier, and he carries them away; these are no larcenies.2 But if wine, and takes away part thereof, or if he carries it to the place appointed, and afterwards takes away the whole, these are larcenies:3 for here the animus furandi [intent to steal] is manifest; since in the first case he had otherwise no inducement to open the goods, and in the second the trust was determined, the delivery having taken its effect. But bare non-delivery shall not of course be intended to arise from a felonious design; since that may happen from a variety of other accidents. Neither by the common law was it larceny in any servant to run away with the goods committed to him to keep, but only a breach of civil trust. But by statute 33 Hen. VI. c. 1. the servants of persons deceased, accused of embezzling their master’s goods, may by writ out of chancery (issued by the advice of the chief justices and chief baron, or any two of them) and proclamation made thereupon, be summoned to appear personally in the court of king’s bench, to answer their master’s executors in any civil suit for such goods; and shall, on default of appearance, be attainted of felony. And by statute 21 Hen. VIII. c. 7. if any servant embezzles his master’s goods to the value of forty shillings, it is made felony; except in apprentices, and servants under eighteen years old. But if he had not the possession, but only the care and oversight of the goods, as the butler of plate, the shepherd of sheep, and the like, the embezzling of them is felony at common law.4 So if a guest robs his inn or tavern of a piece of plate, it is larceny; for he has not the possession delivered to him, but merely the use:5 and so 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 lodging. Under some circumstances also a man maybe guilty of felony in taking his own goods: as if he steals them from a pawnbroker, or any one to whom he has 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 of charge the hundred with the loss according to the statute of Winchester.6
2. THERE must not only be a taking, but a carrying away: cepit et asportavit [taking and carrying away] 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 sufficient asportation, or carrying away. As if a man be leading another’s horse out of a close, and be inn, has removed them from his chamber down stairs; these have been adjudged sufficient carryings away, to constitute a larceny.7 Or if a thief, intending to steal plate, takes it out of a chest in which it was, and lays it down upon the floor, but is surprised before he can make his escape with it; this is larceny.8
3. THIS taking, and carrying away, must also be felonious; that is, done animo furandi: or, as the civil law expresses it, lucri causa [for gain’s sake].9 This requisite, besides excusing those who labor under incapacities of mind or will, (of whom we spoke sufficiently at the entrance of this book10) indemnifies also mere trespassers, and other petty offenders. As if a servant takes his master’s horse, without his knowledge, and brings him home again: if a neighbor takes another’s plow, that is left in the field, and uses it upon his own land, and then returns it: if, under color of arrear of rent, where none is due, I distrain another’s cattle, or seize them: all these are misdemeanors and trespasses, but no felonies.11 The ordinary discovery of a felonious intent is where the party does it clandestinely, or being charged with the facts, denies it. But this is by no means the only criterion of criminality: for in cases that may amount to larceny the variety of circumstances is so great, and the complications thereof so mingled, that it is impossible to recount all those, which may evidence a felonious intent, of animum furandi: wherefore they must be left to the due and attentive consideration of the court and jury.
4. THIS felonious taking and carrying away must be of the personal goods of another: for if they are things real, or favor of the realty, larceny 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 likewise that adhere to the freehold, as corn, grass, trees, and the like, or lead upon a house, no larceny could be committed by the rules or the common law; but the severance of them was, and in many things is still, merely a trespass: which depended on a subtlety in the legal notions of our ancestors. These things were parcel of the real estate; and therefore, while they continued so, could not by any possibility be the subject of theft, being absolutely fixed and immovable.12 And if they were severed by violence, so as to be changed into moveables; and at the same time, by one and the same continued act, carried off by the person who severed them; they could never be said to be taken from the proprietor, in this their newly acquired state of mobility (which is essential to the nature of larceny) being never, as such, in the actual or constructive possession of any one, but of him who committed the trespass. He could not in strictness be said to have taken what at that time were the personal goods of another, since the very act of taking was what turned them into personal goods. But if the thief fevers them at one time, whereby the trespass ins completed, and they are converted into personal chattels, in the constructive possession of him on whose soil they are left or laid; and comes again at another time, when they are so turned into personalty, and takes them away; it is larceny: and so it is, if the owner, or any one else, has severed them.13 And now, by the statute 4 Geo II. c. 32. to steal, or fever with intent to steal, any lead or iron fixed to a house, or in any court or garden thereunto belonging, is made felony, liable to transportation for seven years: and to steal underwood or hedges, and the like, to rob orchards or gardens of fruit growing therein, to steal or otherwise destroy any turnips or the roots of madder when growing, are by the statutes 43 Eliz. c. 7. 15 Car. II. c. 2. 23. Geo. II. c. 26. and 31 Geo. II. c. 35. punishable criminally, by whipping, small fines, imprisonment, and satisfaction to the party wronged, according to the nature of the offense. Moreover, the stealing by night of any trees, or of any roots, shrubs, or plants to 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 statute 6 Geo. III. c. 48. the stealing of any timber trees therein specified,14 and of any root, shrub, or plant, by day or night, is liable to pecuniary penalties for the two first offenses, and for the third is constituted a felony liable to transportation for seven years. Stealing are out of mines is also no larceny, upon the same principle of adherence to the freehold; with an exception only to mines of black lead, the stealing of are out of which is felony without benefit of clergy by statute 25 Geo. II. c. 10. Upon nearly the same principle the stealing of writings relating to a real estate is no felony, but a trespass:15 because they concern the land, or (according to our technical language) savor of the realty, and are considered as part of it by the law; so that they descend to the heir together with the land which they concern.16
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 committed; being of no intrinsic value,17 and not importing any property in the 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. 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 packet, containing any bank note or other valuable paper particularly specified in the act, or shall steal the same out of any letter of packet, he shall be guilty of felony without benefit of clergy. Or, if he shall destroy any letter or packet with which he has received money for the postage, or shall advance the rate of postage on any letter or packet sent by the post, and shall secrete the money received by such advancement, he shall be guilty of single felony. larceny also could not at common law be committed of treasure-trove, or wreck, till seized by the king or him who has the franchise; for till such seizure no one has a determinate property therein. But by statute 26 Geo. II. c. 19. plundering, or stealing from, any ship in distress (whether wreck or no wreck) is felony without benefit of clergy: in like manner as, by the civil law,18 this inhumanity is also punished in the same degree as the most atrocious theft.
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 [of wild nature], 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.19 But if they are reclaimed or confined, and may serve for food, it is otherwise, even at common law: for of deer so enclosed 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.20 And now, by statute 9 Geo. I. c. 22. to kill or steal any deer in a forest, or other place, enclosed; to rob a warren; or to steal fish from a river or pond, being in this last case armed and disguised; these are felonies without benefit of clergy. And by statute 13 Car. II. c. 10. to steal deer in any forest, though unenclosed, is a forfeiture of 20l. for the first offense, and by statute 10 Geo. II. c. 32. seven years transportation for the second offense: which punishment is also inflicted for the first offense upon such as come to hunt there armed with offensive weapons. 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, 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 conies21 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 enclosed ground being private property. Stealing hawks, in disobedience to the rules prescribed by the statute 37 Edw. III. c. 19. is also felony.22 It is also said,23 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 of all animals domitae naturae [of tame nature], which serve for food, as swine, sheep, poultry, and the like larceny may be committed; and also of the flesh of such as are ferae naturae, when killed.24 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,25 yet they are not of such estimation, as that the crime of stealing them amounts to larceny.26
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.27 In like manner as, among the Romans,28 the lex Hostilia de furtis [Hostilian law of theft] provided, that a prosecution for theft might be carried on without the intervention 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 gravecloths be stolen with it.29 Very different from the law of the Franks, which seems to have respected both as equal offenses; 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 readmission.30
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.31 And in the civil law, till some very late constitutions, we never find the punishment capital. The late of Draco at Athens punished it with death: but his laws were said to be written in blood; and Solon afterwards changed the penalty to a pecuniary mulct, And so the Attic laws in general continued;32 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 informers against the offense, grew so odious, that from them all malicious informers were styled 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 propriety, if not lawfulness, of inflicting capital punishment for simple theft.33 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,34 and the marquis Beccaria,35 at the distance of more than two centuries, 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 labor, 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 diligence, 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 Pufendorf,36 together with Sir Matthew Hale37are 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.38 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.39 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.40 For though the inferior species of theft, or petit larceny, is only punished by whipping at common law,41 or by statute 4 Geo. I. c. 11. may be extended to transportation for seven years, yet the punishment of grand larceny, or the stealing above the value of twelvepence, (which sum was the standard in the time of king Athelstan, eight hundred years ago) is at common law regularly death. Which, considering the great intermediate alteration in the price or denomination of money, is undoubtedly a very rigorous constitution; and made Sir Henry Spelman (above a century since, when money was at twice its present rate) complain, that while everything else was risen in its nominal value, and become dearer, the life of man had continually grown cheaper.42 It is true, that the mercy of juries will often make them strain a point, and bring in larceny to be under the value of twelvepence, when it is really of much greater value: but this is a kind of pious perjury, and does not at all excuse our common law in this respect from the imputation of severity, but rather strongly confesses, the charge. It is likewise true, that by the merciful extensions of the benefit of clergy by our modern statute law, a person who commits a simple larceny to the value of thirteen pence or thirteen hundred pounds, though guilty of a capital offense, shall be excused the pains of death: but this is only for the first offense. And in many cases of simple larceny the benefit of clergy is taken away by statute: as from horsestealing;43 taking woolen cloth from off the tenters,44 or linen from the place of manufacture;45 stealing sheep or other cattle specified in the acts;46 thefts on navigable rivers above the value of forty shillings;47 plundering vessels in distress, or that have suffered shipwreck;48 stealing letters sent by the post;49 and also stealing deer, hares, and conies under the peculiar circumstances mentioned in the Waltham black act.50 Which additional severity is owing to the great malice and mischief of the theft in some of these instances; and, in others, to the difficulties men would otherwise lie under to preserve those goods, which are so easily carried off. Upon which last principle the Roman law punished more severely than other thieves the abigei, or stealers of cattle;51 and the balnearii, or such as stole the clothes of persons who were washing in the public baths:52 both which constitutions seem to be borrowed from the laws of Athens.53 And so too the ancient Goths punished with unrelenting severity thefts of cattle, or of corn that was reaped and left in the field: such kind of property (which no human industry can sufficiently guard) being esteemed under the peculiar custody of heaven.54 And thus much for the offense of simple larceny.
MIXED, or compound larceny is such as has all the properties of the former, but is accompanied with one of, or both, the aggravations of a taking from one’s house or person. First therefore of larceny from the house, and then of larceny from the person.
1. LARCENY from the house, though it seems (from the considerations mentioned in the preceding chapter55) to have a higher degree of guilt than simple larceny, yet is not at all distinguished from the other at common law:56 unless where it is accompanied with the circumstance of breaking the house by night; and then we have seen that it falls under another description, viz. that of burglary. But now by several acts of parliament (the history of which is very ingeniously deduced by a learned modern wrier,57 who has shown them to have gradually arisen from our improvements in trade and opulence) the benefit of clergy is taken from larcenies committed in an house in almost every instance.58 The multiplicity of which acts are apt to create some confusion; but upon comparing them diligently we may collect, that the benefit of clergy is denied upon the following domestic aggravations of larceny; viz. 1. In all larcenies above the value of twelvepence, from a church, or from a dwelling-house, or booth, any person being therein. 2. In all larcenies to the value of 5 s. committed by breaking the dwelling-house, though no person be therein. 3. In all larcenies to the value of 40 s. from a dwelling-house, or its outhouses, without breaking in, and whether any person be therein or no. 4 In all larcenies to the value of 5 s. from any shop, warehouse,59 coachhouse, or stable; whether the same be broken open or not, and whether any person be therein or no. In all these cases, whether happening by day or by night, the benefit of clergy is taken away from the offenders.
2. LARCENY from the person is either by privately stealing; or by open and violent assault, which is usually called robbery.
THE offense of privately stealing from a man’s person, as by picking his pocket or the like, without his knowledge, was debarred of the benefit of clergy, so early as by the statute 8 Eliz. c. 14. But then it must be such a larceny, as stands in need of the benefit of clergy, viz. of above the value of twelvepence; else the offender shall not have judgment of death. For the statute creates no new offense; but only takes away the benefit of clergy, which was a matter of grace, and leaves the thief to the regular judgment of the ancient law.60 This severity (for a most severe law it certainly is) seems to be owing to the ease with which such offenses are committed, and the difficulty of property, in the manual occupation or corporal possession of the owner, which was an offense even in a state of nature. And therefore the saccularii, or cutpurses [purse snatchers], were more severely punished than common thieves by the Roman and Athenian laws.61
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 putting him in fear.62 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:63 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. If the thief, having once taken a purse, 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 of his cattle before his face.64 2. It is immaterial of what value the thing taken is: a penny as well as a pound, thus forcibly extorted, makes a robbery.65 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,66 “qui vi rapuit, fur improbior esse videtur” [“he who takes by force is the more iniquitous thief”]. This previous putting in fear is the criterion that distinguishes robbery 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:67 neither is it capital, as privately stealing, being under the value of twelvepence. Yet this putting in fear does not imply, that any great degree of terror or affright in the party robbed is necessary to constitute a robbery: it is sufficient that so much force, or threatening by work or gesture, be used, as might create an apprehension of danger, or oblige a man to part with his property without or against his consent.68 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.69 So if, under a pretense of sale, a man forcibly extorts money from another, neither shall this subterfuge avail him. But it is doubted,70 whether the forcing a higgler, or other chapman, to sell his wares, and giving him the full value of them, amounts to so heinous a crime as robbery.
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 or near the king’s highway. A robbery therefore in a distant field, or footpath, was not punished with death;71 but was open to the benefit of clergy, till the statute 3 & 4 W. & M. c. 9. which takes away clergy from robbery wheresoever committed.
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 relation 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.
AND, first, by statute 22 Hen. VIII. c. 11. perversely and maliciously to cut down or destroy the powdike [marsh], in the fens of Norfolk and Ely, is felony. 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 prey, or make spoil, of the persons or goods of the subject upon deadly feud, in the four northern counties of Northumberland, Westmorland, Cumberland, and Durham; 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. to burn any ricks or stacks of corn, hay, or grain, barns, houses, buildings, or kilns; or maliciously, unlawfully, and willingly to kill any horses, sheep, or other cattle, in the night time, is felony; but the offender may make his election to be transported for seven years: and to main or hurt such cattle is a trespass, for which treble damages shall be recovered. 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. 48. maliciously 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, 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 cast aqua fortis in the streets upon such as wore them. By statute 9 Geo. I. c. 22. commonly called the Waltham black act, occasioned by the devastations committed in Epping forest, near Waltham in Essex, 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 Scotland72); by this black act, I say, which has in part been mentioned under the several heads of riots, mayhem, and larceny, it is farther enacted, that unlawfully and maliciously to set fire to any house, barn, or outhouse, or to any hovel, cock, mow, or stack of corn, straw, hay, or wood; or to break down the head of any fishpond, whereby the fish shall be lost; or to kill, maim, or wound any cattle; or to cut down, or destroy, any trees planted in an avenue, or growing in a garden, orchard, or plantation, for ornament, shelter, or profit; all these malicious acts are felonies without benefit of clergy: and the hundred shall be chargeable for the damages, unless the offender be convicted. In like manner by the Roman law to cut down trees, and especially vines, was punished in the same degree as robbery.73 By statutes 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 of sea bank, whereby lands may be overflowed; or to cut any hop-binds growing in a plantation of hops, or wilfully and maliciously to let fire to any mine or delph [mine] of coal. 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. And by statute 6 Geo. III. c. 36 & 48. wilfully to spoil or destroy any timber or other trees, roots, shrubs, or plants, is for the two first offenses 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. And these are the punishments of malicious mischief.
III. FORGERY, or the crimen falsi, is an offense, which was punished by the civil law with deportation or banishment, and sometimes with death.74 It may with us be defined (at common law) to be, “the fraudulent making or alteration of a writing to the prejudice of another man’s right:” for which the offender may suffer fine, imprisonment, and pillory. And also by a variety of statutes, a more severe punishment is inflicted on the offender in many particular cases, which are so multiplied of late as almost to become general. I shall mention the principal instances.
BY statute 5 Eliz. c. 14. 50 forge or make, or knowingly to publish or give in evidence, any forged deed, court roll, or will, with intent to affect the right of real property, either freehold or copyhold, is punished by a forfeiture to the party grieved of double costs and damages; by standing in the pillory, and having both his ears cut off, and his nostrils slit, and seared; by forfeiture to the crown of the profits of his lands, and by perpetual imprisonment. For any forgery relating to a term of years, or annuity, bond, obligation, acquittance, release, or discharge of any debt or demand of any personal chattels, the same forfeiture is given to the party grieved; and on the offender is inflicted the pillory, loss of one of his ears, and half a year’s imprisonment: the second offense in both cases being felony without benefit of clergy.
BESIDES this general act, a multitude of others, since the revolution, (when paper credit was first established) have inflicted capital punishment on the forging or altering of bank bills or notes, or other securieties;75 of bills of credit issued from the exchequer;76 of south sea bonds, etc;77 of lottery orders;78 of army or navy debentures;79 of East India bonds;80 of writings under seal of the London, or royal exchange, assurance;81 of a letter of attorney or other power to receive or transfer stock or annuities, or for the personating a proprietor thereof, to receive or transfer such annuities, stock, or dividents:82 to which ma be added, though not strictly reducible to this head, the counterfeiting of mediterranean passes, under the hands of the lords of the admiralty, to protect one from the piratical states of Barbary;83 the forging or imitating any stamps to defraud the stamp office;84 and the forging any marriage register or license:85 all which are by distinct acts of parliament made felonies without benefit of clergy. And by statute 31 Geo. II. c. 32. forging or counterfeiting any stamp or mark to denote the standard of gold and silver plate, and certain other offenses of the like tendency, are made felony, but not without benefit of clergy.
THERE are also two other general laws, with regard to forgery; the one 2 Geo. II. c. 35. whereby the first offense in forging or publishing any forged deed, will, writing obligatory, bill of exchange, promissory note, endorsement or assignment thereof, or any acquittance or receipt for money or goods, with intention to defraud any person, is made felony without benefit of clergy. And by statute 7 Geo. II. c. 22. it is equally penal to forge or utter a counterfeit acceptance of a bill of exchange, or the number of any accountable receipt for any note, bill, or any other security for money; or any warrant or order for the payment of money, or delivery of goods. So that, I believe, through the number of these general and special provisions, there is now hardly a case possible to be conceived, wherein forgery, that tends to defraud, whether in the name of a real or fictitious person,86 is not made a capital crime.
THESE are the principal infringements of the rights of property; which were the last species of offenses against individuals or private subjects, which the method of our distribution has led us to consider. We have before examined the nature of all offenses against the public, or commonwealth; against the king or supreme magistrate, the father and protector of that community; against the universal law of all civilized nations; together with some of the more atrocious offenses, of publicly pernicious consequence, against God and his holy religion. And these several heads comprehend the whole circle of crimes and misdemeanors, with the punishment annexed to each, that are cognizable by the laws of England.
1. See Vol. II. pag. 8, etc.
2. 1 Hal. P. C. 504.
3. 3 Inst. 107.
4. 1 Hal. P. C. 506.
5. 1 Hawk. P. C. 90.
6. Foster. 123, 124.
7. 3 Inst. 108, 109.
8. 1 Hawk. P. C. 93.
9. Inst. 4. 1. 1.
10. See pag. 20.
11. 1 Hal. P. C. 509.
12. See Vol. II. pag. 16.
13. 5 Inst. 109. 1 Hal. P. C. 510.
14. Oak, beech, chestnut, walnut, ash, elm, cedar, fir, asp, lime, sycamore, and birch.
15. 1 Hal. P. C. 510. Stra. 1137.
16. See Vol. II. pag. 438.
17. 8 Rep. 33.
18. Cab. 6. 2. 18.
19. 1 Hal. P. C. Fost. 336.
20. 1 Hawk. P. C. 94. 1. Hal. P. C. 511.
21. See stat. 22 & 23 Car. II. c. 25.
22. 3 Inst. 98.
23. Dalt. Just. C. 156.
24. 1 Hal. P. C. 511.
25. See Vol. II. pag. 393.
26. 1 Hal. P. C. 512.
28. Gravin. L. 3. § 106.
29. See Vol. II. pag. 429.
30. Montesq. Sp. L. b. 30. ch. 19.
31. Exod. c. xxii.
32. Petit. LL. Attic. l. 7. tit. 5.
33. 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. [Death is too severe a punishment for theft, nor yet sufficient to restrain it; for neither is simple theft such a heinous offense, that it should be made capital, nor can there be any punishment so severe as to restrain those from robbing who have no other means of obtaining a livelihood.] (Mori Utopia. Edit. Glasg. 1750. pag. 21.) Denique, cum lex Mosaica, quanquam inclemens et aspera, tamen pecunia furtum, haud morte, mulctavit; ne putemus Deum, in nova lege clementiae qua pater imperat filiis, majorem indusisse nobis invicem saeviendi licentiam. Haec sunt cur non licere putem: quam vero sit absurdum, atque etiam perniciosum reipublicae, furem atque homicidam ex aequo puniri, nemo est (opinor) qui nesciat. [In short, since the Mosaic law, although rigorous and severe, only punished theft by a fine, not by death, we cannot think that God, in that new law of mercy by which as a father he governs his children, has granted us a greater liberty of harshness or severity towards each other. These are the reasons why I deem it unlawful. And there is no one, I think, but must be sensible how absurd it is, and even pernicious to the commonwealth, that a thief and a murderer should receive the same punishment.] (Ibid. 39.)
34. Utop. pag. 42.
35. ch. 22.
36. L. of N. b. 8. c. 3.
37. 1 Hal. P. C. 13.
38. See pag. 9.
39. Tac. de mor. Germ. c. 12.
40. 1 Hal. P. C. 12. 3 Inst. 53.
41. 3 Inst. 218.
42. Gloss. 350.
43. Stat. 1 Edw. VI. c. 12. 2. & 3. Edw. VI.
44. Stat. 22 Car. II. c. 5.
45. Stat. 18 Geo. II. c. 27.
46. Stat. 14 Geo. II. c. 6. 15 Geo. II. c. 34.
47. Stat. 24 Geo. II. c. 45.
48. Stat. 12. Ann. St. 2. c. 18. 26Geo. II. c. 19.
49. Stat. 7. Geo. III. c. 50.
50. Stat. 9 Geo. I. c. 22.
51. Ff. 47. t. 14.
52. Ibid. t. 17.
53. Pott. Antiqu. b. 1. c. 26.
54. Stiernh. de jure Goth. l. 3. c. 5.
55. See pag. 223.
56. 1 Hawk. P. C. 98.
57. Barr. 375. etc.
58. Stat. 23 Hen. VIII. c. 1. 25. Hen. VIII. c. 3. 1 Edw. VI. c. 12. 5. & Edw. VI. c. 9. 10 & 11 W. III. c. 23. 12. Ann. c. 7.
59. See Foster. 78, 79. Barr. 379.
60. 1 Hawk. P. C. 98.
61. Ff. 47. 11. 7. Pott. Antiqu. l. 1. c. 26.
62. 1 Hawk. P. C. 95.
63. 1 Hal. P. C. 532.
64. 1 Hal. P. C. 533.
65. 1 Hawk. P. C. 97.
66. Ff. 4. 2. 14. § 12.
67. 1 Hal. P. C. 534.
68. Fost. 128.
69. 1 Hawk. P. C. 96.
70. Ibid. 97.
71. 1 Hal. P. C. 535.
72. 3 Inst. 197.
73. Ff. 47. 7. 2.
74. Inst. 4. 18. 7.
75. Stat. 7 & 8 W. III. c. 31. 8 & 9. III. c. 20. 11 Geo. I. c. 9. 12 Geo. I. c. 32. 15 Geo. II. c. 13.
76. See the several acts for issuing them.
77. Stat. 9 Ann. c. 21. 6 Geo. I. c. 4. & 11. 12 Geo. I. c. 32.
78. See the several acts for the lotteries.
79. Stat. 5. Geo. 1. c. 14. 9 Geo. I. c. 5.
80. Stat. 12 Geo. 1. c. 32.
81. Stat. 6. Geo. 1. c. 18.
82. Stat. 8 Geo. I. c. 22. 9 Geo. 1. c. 12.
83. Stat. 4. Geo. II. c. 18.
84. See the several stamp acts.
85. Stat. 26 Geo. 11 c. 33.
86. Fost. 116, etc.