ple theft. (k) 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, (2) and the marquis Beccaria, (m) 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 [*237] 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 Puffendorf, (2) together with Sir Matthew Hale, (o) 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. (p) 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. (g) 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. (r) For though the inferior species of theft, or petit larceny, is only punished by imprisonment or whipping at common law, (s) which by statute 4 Geo. I, c. 11, may be extended to transportion for seven years, as is also expressly directed in the case of the plate-glass company, (t) 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 (u) in the price or denomination of *money, is undoubtedly a [*238] very rigorous constitution; and made Sir Henry Spelman (above a century since, when money was at twice its present rate), complain, that while every thing else was risen in its nominal value, and become dearer, the life of man had continually grown cheaper. (v) 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, though evidently justifiable and proper, when it only reduces the present nominal value of money to the ancient standard, (2) is otherwise 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, (k) Est enim ad vindicanda furta nimis atrox, nec tamen ad refrænanda sufficiens; quippe neque furtum simplex tam ingens facinus est, ut capite debeat plecti: neque ulla pæna est tanta ut ab latrociniis cohibeat eos, qui nullam aliam artem quærendi victus habent. (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 clementiæ qua pater imperat filiis majorem indulsisse nobis invicem sæviendi licentiam. Hæc sunt cur non licere putem; quam vero sit absurdum, atque etiam perniciosum reipublicæ, furem atque homicidam ex æquo puniri nemo est (opinor) qui nesciat. (Ibid. 39.) Utop. page 42. (n) L. of N. b. 8, c. 3. (0) 1 Hal. P. C. 13. (p) See page 9. (q) Tac. de mor. Germ. c. 12. (r) 1 Hal. P. C. 12, 3 Inst. 53. (t) Stat. 13 Geo. III, c. 38. (8) 3 Inst. 218. (m) Ch. 22. (u) In the reign of King Henry I, the stated value, at the exchequer, of a pasture-fed ox, was one shilling (Dial. de Scacc. l. 1, §7), which, if we should even suppose to mean the solidus legalis mentioned by Lyndewode (Prov. l. 3, c. 13. See book II, page 509), or the 72d part of a pound of gold, is only equal to 18. 4d. of the present standard. (w) 2 Inst. 189. (v) Gloss. 350. a person who commits a simple larceny to the value of thirteen pence, or thirteen hundred pounds, though guilty of a capital offence, shall be excused the pains of death: but this is only for the first offence. And in many cases of simple larceny the benefit of clergy is taken away by statute; as for horsestealing in the principals, and accessories both before and after the fact; (x) theft by great and notorious thieves in Northumberland and Cumberland; (y) taking woollen cloth from off the tenters, (2) or linens, fustians, calicoes, or cotton goods from the place of manufacture; (a) (which extends, in the last case, to aiders, assisters, procurers, buyers, and receivers;) feloniously driving away, or otherwise stealing one or more sheep or other cattle specified in the *acts, or killing them with intent to steal the whole or any part of the [*239] carcase, (b) or aiding or assisting therein; thefts on navigable rivers above the value of forty shillings, (c) or being present, aiding and assisting thereat: plundering vessels in distress, or that have suffered shipwreck; (d) stealing letters sent by the post, (e) (11) and also stealing deer, fish, hares, and conies under the peculiar circumstances mentioned in the Waltham black act. (f) 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; (g) and the balnearii, or such as stole the clothes of persons who were washing in the public baths; (h) both which constitutions seem to be borrowed from the laws of Athens. (i) And so, too, the ancient Goths punished with unrelenting severity thefts of cattle, or 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. (j) And thus much for the offence of simple larceny. Mixed or compound larceny is such as has all the properties of the former, but is accompanied with either one or both of 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 chapter) (k) to have a higher degree of guilt than simple larceny, yet it is not at all *distinguished from the other at com[*240] mon law; (2) 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 writer, (m) who hath shown them to have gradually arisen from our improvements in trade and opulence), the benefit of clergy is taken from larcenies committed in a house in almost every instance; except that larceny of the stock or utensils of the plate-glass company from any of their houses, &c., is made only a single felony, and liable to transportation for seven years. (n) The multiplicity (z) Stat. 1 Edw. VI, c. 12. 2 and 3 Edw. VI, c. 33. 31 Eliz. c. 12. (y) Stat. 18 Car. II, c. 8. Stat. 22 Car. II, c. 5. But, as it sometimes is difficult to prove the identity of the goods so stolen, the onus probandi with respect to innocence is now by statute 15 Geo. II, c. 27, thrown on the persons in whose custody such goods are found; the failure whereof is, for the first time, a misdemeanor punishable by the forfeiture of the treble value: for the second, by imprisonment, also; and the third time it becomes a felony, punished with transportation for seven years. (a) Stat. 18 Geo. II, c. 27. Note, in the three last cases an option is given to the judge to transport the offender: for life in the first case, for seven years in the second, and for fourteen years in the third; in the first and third cases instead of sentence of death, in the second after sentence is given. (b) Stat. 14 Geo. II, c. 6. 15 Geo. II, c. 34. See book I, page 88. (d) St. 12 Ann. st. 2, c. 18. 26 Geo. II, c. 19. (9) Ff. 47, t. 14. (h) Ibid. t. 17. () 1 Hawk. P. C. 98. (j) Stiernh. de jure Goth. 1. 3, c. 5. (k) See page 223. (c) Stat. 24 Geo. II, c. 45. (f) Stat. 9 Geo. I, c. 22. (n) Stat. 13 Geo. III, c. 38. (11) Offenses relating to the postoffice were provided for by statute 7 Wm. IV, and 1 Vic., c. 86. As to the other offenses mentioned in this paragraph, see statute 24 and 25 Vic., c. 96. In the United States the postal service being exclusively in the control of the national gov of the general acts is 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.: First, in larcenies above the value of twelvepence, committed, 1. In a church or chapel, with or without violence, or breaking the same; (o) 2. In a booth or tent, in a market or fair in the day-time or in the night, by violence or breaking the same; the owner or some of his family being therein: (p) 3. By robbing a dwelling-house in the daytime (which robbing implies a breaking), any person being therein: (g) 4. In a dwelling-house by day or by night, without breaking the same, any person being therein put in fear; (r) which amounts in law to a robbery; and in both these last cases the accessory before the fact is also excluded from his clergy. Secondly, in larcenies to the value of five shillings, committed, 1. By breaking any dwelling-house or any outhouse, shop, or warehouse thereunto belonging in the day-time, although no person be therein; (s) which also now extends to aiders, abettors, and accessories before the fact: (t) 2. By privately stealing goods, *wares, or merchandise in any shop, warehouse, (u) coachhouse, [*241] or stable, by day or by night; though the same be not broken open, and though no person be therein: () which likewise extends to such as assist, hire, or command the offence to be committed. Lastly, in larcenies to the value of forty shillings in a dwelling-house, or its outhouses, although the same be not broken, and whether any person be therein or no; unless committed against their masters by apprentices under the age of fifteen. (w) This also extends to those who aid or assist in the commission of any such offence. (12) 2. Larceny from the person is either by privately stealing; or by open and violent assault, which is usually called robbery. The offence of privately stealing from a man's person, as by picking his pocket or the like, privily without his knowledge, was debarred of the benefit of clergy, so early as by the statute 8 Eliz. c. 4. 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 offence; but only prevents the prisoner from praying the benefit of clergy, and leaves him to the regular judgment of the ancient law. (x) 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 practiced (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 cut-purses, were more severely punished than common thieves by the Roman and Athenian laws. (y) (13) (0) Stat. 23 Hen. VIII, c. 1. 1 Edw. Vl, c. 12. 1 Hal. P. C. 518. (q) Stat. 3 and 4 W. and M. c. 9. (r) Ibid. (t) Stat. 3 and 4 W. and M. c. 9. (u) See Foster, 78. Barr. 879. (v) Stat. 10 and 11 Wm. III, 3. c. 23. (w) Stat. 12 Ann. st. 1, c. 7. (x) 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 woolen cloths from the tenters; and possibly in such other cases where it is provided by any statute that simple larceny under certain circumstances shall be felony without benefit of clergy. (y) Fƒ. 47, 11, 7. Pott. Antiq. 1. 1, c. 26. ernment, offenses which obstruct or interfere with its due performance are defined and punished by acts of congress. See Rev. St. U. S. 1878, § 5463, et seq. Larceny from the mails is made a felony. (12) See, as to this offense, statute 24 and 25 Vic., c. 96. In the United States a distinction is commonly made by statute between larceny in a dwelling house and simple larceny, and the former is more severely punished. (13) This subject is also covered by statute 24 and 25 Vic., c. 96. If a robbery is committed, being armed, or by more than one person, and with personal violence, the punishment may be penal servitude for life; in other cases it is limited to penal servitude for not more than fourteen nor less than three years, or to imprisonment not more than two years. 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. (2) 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: (a) 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. 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 or his cattle before his face. (b) But if the taking be not either directly from his person, or in his presence, it is no robbery. (c) 2. It is immaterial of what value the thing taken is: a penny as well as a pound, thus forcibly extorted, makes a robbery. (d) 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 (e) "qui vi rapuit, fur improbior esse videtur." This previous violence, or putting in fear, is the criterion that distinguishes robbery from other larcenies. For if one *privately steals sixpence from the person [*243] of another, and afterwards keeps it by putting him in fear, this is no robbery, for the fear is subsequent: (f) 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. (g) 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. () 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. (i) So if, under a pretence of sale, a man forcibly extorts money from another, neither shall this subterfuge avail him. But it is doubted, (j) 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. (14) (z) 1 Hawk. P. C. 95. (a) 1 Hal. P. C. 532. (d) 1 Hawk. P. C. 97. (14) As to the taking and intent, see notes 4 and 5, supra. The thing taken need not be actually severed from the person. It is enough if it be in the presence and under the control of the person from whom it is taken. Clary v. State, 33 Ark., 561; Kit v. State, 11 Humph., 167; U. S. v. Jones, 3 Wash. C. C., 209. Where a man went armed to a house and, by threats of death, compelled the owner's wife to take money from a desk in the owner's presence, and then snatched it from her hand, held robbery. Turner v. State, 1 Ohio St., 422. The owner of certain goods, traveling with a man in charge of some of these goods, was knocked senseless by the man, who then ran away with the goods. Held that the man's possession of the goods was that of the owner, and the offense was robbery. James v. State, 53 Ala., 380. But it is no robbery if one carry. ing goods drops them to go to the assistance of the owner who is assaulted, and a thief picks them up and runs off with them. R. v. Fallows, 5 C. & P., 508. It is unnecessary to prove both violence and intimidation. If a man is knocked senseless and plundered, it is robbery, though there may be no putting in fear; and where fear is the essential ingredient, the law in odium spoliatoris will presume violence where there appears just ground for it. State v. Burke, 73 N. C., 83; McDaniel v. State, 8 Sm. & M., 401. If VOL. II.-54 425 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 foot-path, was not punished with death; (k) but was open to the benefit of clergy, till the statute 3 and 4 W. and M. c. 9, which takes away clergy from both principals and accessories before the fact, in 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. [*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. 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. (15) By statute 43 Eliz. c. 13 (for preventing rapine on the northern borders), to (k) 1 Hal. P. C. 535. See there is any struggle for the possession of the goods taken, this is violence enough. If the "fact be attended with circumstances of terror, such threatening word or gesture as in common experience is likely to create an apprehension of danger and induce a man to part with his property for the safety of his person, it is robbery.' It is not necessary to prove actual fear, as the law will presume it in such a case. If the terror continue, the delivery of the property need not be contemporaneous with the assault. Long v. State, 12 Ga., 293. Taplin's Case, Simon's Case, Spencer's Case, 2 East P. C., 712; State v. Howerton, 58 Md., 581. Where a man, as he stepped on a street car, was pushed against the door by a large man standing on the platform, and then another man threw his arm round his neck, pushing back his head and at the same time rifling his pocket, there was force enough to make it a robbery. Mahoney v. People, 10 N. Y. S. C., 202. For like case, see Com. v. Snelling, 4 Binn., 379. A thief snatched a man's watch from his fob. The watch was fastened to a chain going round the neck, and the chain only broke after three jerks. As the thief used actual force in overcoming the resistance of the chain, held robbery. R. v. Mason, R. & R., 419. So where a silk watch-guard was broken, and at the same time the thief said that he meant to take the watch. State v. McCune, 5 R. I., 60. Where a watch-chain was snatched away, held that if there was violence enough to carry out the intent, it was robbery. State v. Broderick, 59 Mo., 318. But where the prisoner, while walking in a friendly way, drew money from his friend's pocket, using only force enough to draw it from the pocket, the court held, that "the mere snatching of anything from the hand or person of any one without any struggle or resistance by the owner, or any force or violence on the part of the thief, will not constitute robbery." McCloskey v. People, 5 Park. Cr. R., 299. See Baker's Case, 2 East P. C., 702; Steward's Case, ibid., where a wig and hat were taken from the owner's head; Horner's Case, 2 East P. C., 703, where an umbrella was snatched from the hand; R. v. Wall, 2 C. & K., 214, where a watch, loosely held in the hands, was taken. In Shinn v. State, 64 Ind., 13, money was snatched from the owner, but the only violence used was in preventing his retaking it; held no robbery. See Bonsall v. State, 35 Ind., 460. That extorting money or other thing of value, by means of a charge of sodomy, may be robbery, see People v. McDaniels, 1 Park. Cr. R., 198. But this is an exceptional case, and it is held not robbery to extort money by means of the charge of any other offense, as for instance, forgery. Long v. State, 12 Geo., 293; Britt v. State, 7 Humph., 45. Obtaining money from a woman under a threat to accuse her husband of an indecent assault, was held not to be robbery, in Rex v. Edwards, 5 C. & P., 518; 1 Moo. & R., 257. (15) See, as to this offense, statute 24 and 25 Vic., c. 97. The same statute provides gengerally for other offenses mentioned in this paragraph. As to malicious mischief in the United States, at the common law, see State v. Robinson, 8 Dev. & Bat. 130, and the valuable note thereto in 32 Am. Dec., 662, |